A democratic fix for an increasingly autocratic Supreme Court.

The U.S. Supreme Court operates with little to no regulatory check on its authority. Time for the Congress to restore democracy to the highest court in the land.

An MRI scan of American democracy revealed the growth of polyps on the 3^rd pillar of American democracy, America’s judicial system. Further examination revealed that the polyp growth was concentrated at the core of America’s legal system, the U.S. Supreme Court. Test results of the polyp tissue came back positive, unfortunately, revealing that the nation’s highest court is infected with autocratic cancer, meaning a democratic fix must be applied asap preventing the spread of autocratic cancer to America’s lower courts or the other 2 pillars of American democracy.

Since day 1 of American democracy, the component most vulnerable and susceptible to autocratic cancer has always been the U.S. Supreme Court. Because it’s the component of American democracy that operates with little to no regulatory check on its authority. The 9 Supreme Court Justices operate as gods accountable to no one, each justice is only accountable to himself or herself as an individual judge god. No one, including the Chief Justice of the Supreme Court, can tell a Justice of the Supreme Court what to do or not do beyond their constitutional duties as a judge, they are free to govern themselves.

Even if the House and Senate pass laws to regulate the non-judicial behavior, such as conflict of interest rules, of Supreme Court Justices, the House and Senate’s only enforcement capability, impeachment conviction, and removal from the court if justices violate them, is rendered moot by partisan politics so fierce, that the necessary two-thirds Senate vote to convict and remove a Republican or Democrat-appointed justice is not possible.

A prime example of House and Senate mootness is last week’s disclosure that Justice Clarence Thomas participated in a case in which his wife, Ginni Thomas, had a substantial interest in the outcome. The case was whether or not former President Donald Trump could deny documents to the House select committee investigating the January 6 attack at the U.S. Capitol. All Justices except Thomas ruled that the documents must be turned over to the House committee, and low and behold when the documents were turned over among them were 29 potentially incriminating text messages sent by Justice Thomas’s wife Ginni.

Last Friday Democrats called on Supreme Court Justice Clarence Thomas to recuse himself from cases related to Jan. 6, and House Minority Leader, Republican Kevin McCarthy, defended Justice Clarence Thomas’ ability to continue to make rulings related to January 6. Demonstrating how partisan politics makes impeachment impossible so consequently there is nothing or no one to hold errant Supreme Court justices accountable. The status quo worked well for over 200 years of American democracy, but now that the Supreme Court has been infected with autocratic cancer, new legislative law from the House and Senate is needed to return democracy to the Supreme Court.

The 2 most popular legislative reforms adding justices to the court and term limits for justices are a step in the right direction, except they fall a tad bit short. Adding justices to the Supreme Court or court-packing is just as wrong today as it was in 1937 when then-President Franklin Roosevelt proposed it. There are only 2 non-political reasons to add more justices to the Supreme Court, one is to improve the operations of HOW rulings are reached but not to change what the rulings will be, and two is to increase how many cases the Supreme Court can hear each year.

A hybrid of the term limit is the best way to both address current cancer contamination and prevent future long-term contamination. The House and Senate should pass a law that requires the President to decide, without a consent vote of the Senate, whether to reappoint or not reappoint each Supreme Court Justice at every 10^th-year interval of their service on the Supreme Court. Once reappointed they would serve another 10 years and have to be reappointed or not reappointed again at the next 10^th-year interval.

The Supreme Court as composed October 27, 2020 to present. | Wikimedia/Fred Schilling, Collection of the Supreme Court of the United States

If a President decides not to reappoint the replacement Supreme Court Justice would go through the traditional Senate confirmation process. No more than 3 justices or one-third of the 9 Justices could be replaced at the same time and the first day the law is in effect the sitting President could immediately opt to replace any 3 current Supreme Court Justices that have served 10 years or more. The 10-year reappointment provides an if it ain’t broke don’t fix it option that a term limit provision does not.

Every Supreme Court Justice confirmed since John Roberts was asked during their confirmation hearings if they would overturn Roe v Wade, each one said they were strong believers in stare decisis implying they would not overturn Roe v Wade. Based on their rulings all but Justice Sonia Sotomayor and Justice Elena Kagan lied during the confirmation process because they all have ruled in cases to gut the stare decisis of Roe v Wade. During confirmation hearings for Justice Brett Kavanaugh, sexual assault allegations were made against him. Kavanaugh denied the allegations and the FBI was asked to investigate them. We now know no true FBI investigation was conducted into the allegations, meaning it’s possible that proof of the truthfulness of the allegations could emerge in the future.

Under the 10-year reappointment law any Justice who misleads Senators during confirmation hearings on any subject matter, even if the evidence does not surface until after they have been confirmed, can be dealt with at the 10-year interval. The 10-year reappointment also will put teeth into a second law the House and Senate need to pass to remove autocracy and return democracy to the Supreme Court.

The second law is requiring Supreme Court justices to follow the same ethics and conflict of interest rules that all other federal judges in America must live by. As mentioned earlier Justice Clarence Thomas’s obvious conflict of interest is unethical but legal, giving political justification to the current political partisanship preventing his impeachment. A new law mandating Supreme Court justices must abide by the same ethics rules as all other federal judges in the United States, makes political partisanship to protect unethical behavior more difficult when it’s a clear violation of the law as opposed to it just being immoral. But if political partisanship prevails and prevents a Supreme Court Justice from being held accountable for an illegal ethics violation, the sitting President can do so at the 10^th year interval.

The Merriam-Webster dictionary defines an autocrat as “a person (such as a monarch) ruling with unlimited authority”. Supreme Court justices are individual autocrats, because once they are seated on the Supreme Court there is no one or nothing to hold them individually accountable for anything they choose to do, and to add insult to injury America is stuck with them until they die or voluntarily give up power in true autocratic or dictatorial style.

One of the geniuses of American democracy is that the 3 branches of American governance, legislative (House and Senate), executive (President and federal government bureaucracy), and judicial (federal courts) each can hold the other branches accountable for errant conduct.

Past misleading testimony during Supreme Court confirmation hearings by some sitting Supreme Court justices, recent rule by ideology judgments as opposed to rule by law judgments by the Supreme Court, and the current no consequence conflict of interest judgment by Justice Clarence Thomas, demonstrate that in 2022 both the legislative and executive branches have lost all ability to hold the most powerful component of the judicial branch, the Supreme Court, accountable for errant conduct. The House and Senate should pass the 10^th year reappointment and conflict of interest legislation NOW, to remove autocracy and restore democracy to the highest court in the land!

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– AUTHOR –

▫ Isaac Newton Farris Jr., Nephew of Martin Luther King Jr, he serves as Senior Fellow at King Center. Growing up in one of the most socially & politically active families has given him a unique perspective on current events.

Sources

• Text: This piece was originally published in Isaac Newton Farris Jr.’s blog and re-published in PMP Magazine on 1 April 2022, with the author’s consent. | The author writes in a personal capacity.
• Cover: Flickr/Phil Roeder. - The nine chairs of the Justices lined up in the Court Chamber. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)