Has the Supreme Court Lost Its Way?


#1

Over the last year, support for the Supreme Court among American voters has dropped precipitously, plummeting from 60% approval a year ago to only 38% today. After a series of deeply controversial rulings in June of 2022 — including overturning Roe vs. Wade, a deeply unpopular decision among the majority of Americans — that number likely will not improve any time soon.

What is responsible for this sudden loss of legitimacy and trust in the Supreme Court among the public? How is it that this institution — designed to remain above the fray of everyday partisan politics — has apparently become so politicized in recent years?

Watch as Mark and Corey discuss the legitimacy crisis the Court is now faced with, the dangers of an “originalist” reading of the U.S. Constitution, and the failure of the left to produce a coherent legal theory to steer the Court (and the rest of the country) toward a better, more inclusive, and more stable vision of democracy.


#2

Another opening question might be: Has the Supreme Court ever found its way? Without an Integral consciousness, I think not :slightly_smiling_face:! Other SCs may have come closer to hitting the mark, but this one seems pretty far from that. There seems to be some amber and a few green underbellies to its rationality, and its reasoning and other capacities of the orange stage appear to be used–sloppily sometimes, even deviously–to buffet the particular worldviews and political stances of the individual members.

The ethics and commitments to truth-telling of some members of the Court are questionable, and the Court lacks religious diversity and is clearly partisan and politically unbalanced, with the conservative right who have worked at least 50 years to blend religion and politics, favored.

Does religion matter? When it comes to issues like abortion, it can, and most likely does, based on comments some of the justices have made in the past. Seven of the justices who ruled on the abortion issue are Catholic (which includes Gorsuch who was raised Catholic, later attended an Episcopal church and has not clearly identified his religion, and also Obama-nominated Sotomayor). That amounts to 78% of the Court being identified or affiliated with Catholicism, while only 22% of the US population identify as Catholic. There are slightly more Americans who are religiously unaffiliated (23%), and it might be wise to have one of them on the Court in the future. (Stats from Public Religion Research Institute) Just a thought, and fat chance, one might say.

Religion in politics and governance is somewhat of a sensitive, seemingly semi-fragile issue to discuss, but discuss it we must, I think. It’s sort of the elephant in the room, on various fronts.

Regardless of everything, all is not lost. To quote Arthur Miller: “An era can be considered ended when its basic illusions have been exhausted.” As some of us have believed that democracy is self-sustaining, we’ve also wanted to believe the Supreme Court as a body is somehow ‘more than human,’ a last-resort Superhero of sorts, with an all-seeing eye at its center trained on and penetrating to the core of what constitutes “liberty and justice for all.” We’ve wanted to believe and have endowed the Court over the years with a transcendent wisdom and care that in reality exists in few. So the Supreme Court may be the end of the line in terms of our illusions being exhausted, paving the way for the early beginnings of a Transformation Age, which I’m still anticipating. Not soon but eventually, it will come, aligned with greater Integral emergence. 'Tis my view.

By overturning Roe v Wade and handing to the states decision-making powers around abortion–an issue and decision that involves and affects so many people, professions, institutions, laws, rule and regulations, etc.–the Court has perhaps done us a favor, an inglorious one, but a favor nevertheless in that it may hasten bringing to a head the hyperpolarization in the US. If state-against-state conflicts and battles around legalities and freedoms, and lacks thereof, escalate, sooner or later, this will come to a head, not in the form of an armed civil war or a J6 violent insurrection-type event, I don’t think, but perhaps through a decision-making process in which either there is agreement to live as peacefully and orderly as possible as the “Un United States,” or, there is a recommitment to the ongoing creation of a “more perfect union.” Either way, a new equilibrium could be found. And obviously, any number of factors could upset this applecart I’ve built; we could just all burn up or drown.

On the topic of interpreting the Constitution through “originalism” or in accordance with the concept of a “living history,” to me, this all falls under the very large umbrella of “being” and “becoming,” neither of which can be done away with, and both the left and the right should embrace both of those. Originalists would seemingly prefer that we attend the Constitution and its guiding principles as a steady stillness, just let it lie flat, “be,” interpreting it according to the Founders’ intent. The problem with this, as Mark and Corey pointed out, one is required to imagine their intent as we don’t really know, particularly with some of the poorly worded sections. The other obvious problem is that it allows little leeway for the Constitution itself and its interpretation to “become,” to grow and evolve just as people and cultures change, grow, evolve. This is akin to wanting Shiva without Shakti (to add a little religious diversity), the “I” without the “Am,” a noun without a verb. The left, while embracing and attending to and using where appropriate in their legal theories the original document(s) as foundational (with a beautiful Preamble), could base an overall legal theory on this general concept of “becoming,” stated coherently and succinctly and again and again and again. They need some forcefulness in this regard, imo.

Finally, Mark asked the Integral community what practices we use during these challenging times. I use a lot of different practices to maintain or ignite light, love, and energy, and these Integral podcasts and conversations are a part of that. So is humor. Recently I viewed a ‘morbid humor’ You Tube video depicting comments written on tomb and gravestones. These were some of my favorites, and here’s hoping they don’t offend anybody :slightly_smiling_face:.

“Here lies an atheist. All dressed up and nowhere to go.”

“I see dumb people.”

“It’s dark down here.”

“One way. Do not enter.”

“Well, this sucks.”


#3

I doubt that anyone can produce a coherent legal theory for SCOTUS until the Constitution is completely revised to align with modern democratic values.


#4

Well yes, that’s another option, and I’ve read a number of articles with people calling for another Constitutional Convention. How likely is that to happen anytime soon?


#5

LaWanna - You write: “The ethics and commitments to truth-telling of some members of the Court are questionable, and the Court lacks religious diversity and is clearly partisan and politically unbalanced, with the conservative right who have worked at least 50 years to blend religion and politics, favored.” True enough, but you have understated the facts. The three justices appointed by Donald Trump lied under oath when questioned about their position on Roe v. Wade. The Court as presently constituted is therefore illegimate and for other reasons, too. Merrick
Garland should be on the Court. He is not because Mitch McConnell gave himself the illicit power to deny him a hearing. The three Trump appointees were confirmed by a corrupt process in which nominees were chosen by the Federalist Society precisely to rule against Roe v. Wade when the opportunity presented itself. Worst of all, the sordid effort to pack the Court with religious radicals is part of a grand scheme, being implemented as I write, to transform the United States into a Christian fascist autocracy.


#6

Although they would never call it a “Christian fascist autocracy;.” I think “Christian nation” is more their phrase when they (ever more boldly) speak of it. What is called the “far left” has been warning about this trend for a long time, just as they did about where Trump’s presidency was headed. We probably should listen to them a little more closely.

I am fully aware of all the points you made, from the Garland denial to the statements made by Gorsuch, Kavanaugh, and Coney-Barrett at their confirmation hearings re: Roe being “settled law”–if they didn’t flat out lie, they definitely and intentionally misled–to the role of the Federalist Society in feeding Trump the “appropriate” names for nomination.

And thanks for your feedback. While I may have “understated” the situation, and I did, I do recognize the travesties here. That two of this conservative group faced credible allegations of sexual harassment or sexual assault during their hearings and were still appointed (by a President with 25+ allegations against him of inappropriate sexual behavior including rape, no less), and that one belongs to a religious group that views men as dominant (and the women within the group were actually called “handmaids” until Atwood’s book became a series), adds more fuel to the fire for me. And while they will deny it, I do think this overturning of Roe was more about satisfying parts of the Christian community than anything else; it certainly did not try to satisfy the will of the majority of Americans. And I’m not tricked by the legal and common law history Alito cited. Sir Matthew Hale, omg, essentially the father of a legal tradition that said men could not be held accountable for raping their wives, and a jurist who himself sentenced at least three women to death as ‘witches.’ Ugh…the whole thing is disgusting. As I say, the last of our illusions about the Supreme Court are poof, shattered, vanished, gone with the wind.


#7

This is a productive line of discussion - to utilize the current laws and legal framework in order to modify this very framework.

Constitutional Convention requires 2/3rds (34) of State legislatures in order to amend the Constitution. Amending the Constitution is by design intended to require several election cycles to implement - think of it as “sustained Will of the People” as opposed to a knee jerk election response.

In the next several decades it’s unlikely the Progressives would want a Constitutional Convention as Republicans control outright 30 State legislatures, 2 States have split control, and Conservative agendas are trending with the majority of Americans.

“Down ballot” elections at the State level are tracked closely by the political strategy community as they represent the pipeline of up and coming politicians, as well as a good metric on “Will of the People”.

I see where @Charles_Marxer claims in almost every post “majority” and “modern Democratic principles”, but State level elections simply don’t support these claims.

  • Republican State Legislatures represent 130M Voters
  • Democratic State Legislatures represent 124M Voters
  • Split Legislatures represent 70M Voters (but this includes Legislature/Gov splits)

I also have to say that these discussions on SCOTUS as “corrupt”, “illegitimate” or the individual Justices are the same sound bites off MSDNC, DNN, WaPo, and NYT. Hardly “high altitude” and entirely COUNTER PRODUCTIVE.

Here’s the dirty little secret for all the Progressives - No one cares if you think your ideology is “the most moral”. You have to convince others into believing that your ideology is “better” than all of the other “awesome ideas” in the world. And let’s not forget that most ideas are bad ideas, that’s why they die out when faced with reality.

Is there a single mention that Ketanji Jackson Brown literally SAILED through the approval process? Nope. This is a bad look for people that claim “High Altitude” attainment and perspective. Did KJB lie in her Senate testimony when asked “Can you tell me what a woman is?” LOL. But she was approved in committee and by the Senate. Chalk one up in the bipartisan Senate.
The difference is that Conservatives don’t caterwaul, howl at the moon incessantly about KJB’s confirmation. The Conservative Senators did log hours of “sound bites” (those Meanies!), but also created a fairly accurate “ideological 360 assessment” for the public to see.

That’s the game folks. Really need to focus on “winning the hearts and minds of the People”, and then everything becomes really easy. That’s the BEAUTY OF THE US DEMOCRACY! Hurrah!


#8

Amen to all that. You have touched all the rotten bases.


#9

Yes, this is overall sensible thinking. What I was pointing to is that some people think we’ve been through a large enough number of election cycles that say something about the “sustained will of the people” that it’s time to start considering some reforms, possibly a Convention. See below.

In the past 8 presidential elections covering 28 years (1992-2020), Democrats have won the hearts and minds of the people; they’ve won the popular vote (“will of the people”) 7 times, and of those 7 popular vote wins, have lost the presidency twice (2000: Gore and GW Bush, 2016: Clinton and Trump). Republicans have won the popular vote only once out of 8 elections in those 28 years (Kerry and GW Bush in 2004).

This is due to how the electoral college operates, as you know, and some people do think something needs to change.

I thought this was an interesting article on the use of history by the SC justices, and how that use might be improved: https://www.msn.com/en-us/news/politics/opinion-history-is-more-important-than-ever-at-the-supreme-court-but-which-history/ar-AAZYBdp?cvid=72a9711008cd4b9b986073827fb866db


#10

Count me among them. And I think the best way is not via Constitutional convention (way too many sharks in the water for that), but (broken record starts skipping) by simply repealing the 1929 Reapportionment Act, which has turned the House into an affirmative action program for conservatives, especially after accounting for the effects of gerrymandering. This greatly expands the number of seats in the House, and therefore the number of electors in the College, making it much more representative of our actual population (as the House was designed to be.) We should also extend statehood to DC, Puerto Rico, and Guam, and bring the American citizens who populate these regions into the Constitutional fold.


#11

Funny, I was just thinking “where’s Corey with that Reapportionment Act stuff”? I’m going to read it in full now.


#12

I’d say I was predictable, but you’d probably see that coming :wink:


#13

Funny again. I think there’s a name for the kind of sentence you just wrote, but I’m not sure what it is…Some double entendre maybe, but that’s not the whole thing. Anyway…

Yes, and why haven’t I read that 1929 Act before? I know I’ve intended to multiple times. But I can certainly get behind repeal now that I have read it. Reading how there was no reapportionment in 1920, when Republicans were in full power, due to increased immigration and rural-to-urban population shifts the preceding decade which would have shifted power away from Republicans sounds like it could have happened yesterday.

Ever going to run for office Corey?


#14

“The US stands alone as the only advanced democracy that does not have either a fixed term or a mandatory retirement age for judges on its highest court.”


#15

Interesting article. Thanks for sharing.

I’m not quite so cynical on the Justices “not fact checking” amicus briefs.
Do Kagen and Soytomayor regurgitate Planned Parenthood talking points? Maybe, but I assume they have well considered what they write even if identical to Planned Parenthood.
“The modern reality is the justices look to their friends and allies for historical sources, and rather than fact-check them — which they don’t have the time, resources, or expertise to do — they accept these historical narratives at face value. In the end, this creates an echo chamber where the history the justices cite is the history pressed to them by the groups and lawyers they trust, which conveniently comports with their preexisting worldviews and normative priors.”

Absolutely agree with this proposal.
“First, the Supreme Court should require anyone who files an amicus brief to disclose who paid for it. Current rules require disclosure only of whether the party contributed financially or otherwise to the brief, but they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party).”

This conflation is non-sensical and an attempt to give government expertocracy even greater influence. An amicus brief is not testimony and should not be held to same standards.

“Second, the justices should borrow a practice from the laws of evidence and forbid any amicus brief presenting historical or other factual claims from adding accompanying legal argument. At trial in lower courts, there are strict limits on expert witnesses offering opinions on the law or generally opining on the case’s outcome.”

Found this specifically for Supreme Court cases:
" An amicus brief may be submitted by either a private person or entity, or by the government itself. In fact, many amicus briefs are submitted by a wide variety of governmental agencies, such as school districts, healthcare divisions, and law enforcement agencies. Although consent must be obtained to submit an amicus brief to the Supreme Court, no consent is required for any officer or agent of the U.S. government."

Fair point on the popular vote. Many would point to this being exactly the reason to keep California and New York from hijacking the Federal Government (and budgets/spends). Still lots of room for the concerned to win down ballot elections, and House and Senate seats.

The SCOTUS term limits are now a “Moral Imperative” since the Democrats are on-the-way-out in a big way. No Democrat was squealing when RBG was snoozing on the bench or in and out of the hospital.

Will packing SCOTUS be the right thing to do in 2025?
Cruz, Hawley, Lee, Cotton would be great dream team Justices.


#16

Well actually, a few were squealing “retire RBG, retire!” so that Obama could nominate her replacement. Alas, it didn’t work out that way.


#17

She was definitely political enough (or politicized). Perhaps those Meanie Rep Senators would have made it hard to get a nominee approved?