A Wayward SCOTUS

And How to Fix It

Being a lawyer is a lot like being in a cult. In both cases, you pledge your allegiance to the rules established by a supreme authority — in my case, the Supreme Court.

I hate to say it, but I think I’ve joined the wrong cult.

There’s no question that the Court’s decisions have long been impacted by the political ideologies of its sitting Justices.  Antonin Scalia was as committed to his conservative values as the Notorious RBG was to her legacy of protecting more liberal ideals.  

Equally as true is that the Court commonly possesses a swing vote or “swing justice,” someone who walks a more moderate political line and often serves as the tiebreaker in an otherwise-locked vote (think: Anthony Kennedy). 

But as we hear so often these days: we’re in unprecedented times.

Despite his singular term in office (fingers crossed), Donald Trump managed to transform the political makeup of the Supreme Court by appointing three Justices to the bench, shifting the majority in favor of conservatives by a ratio of six to three (stay strong, Sonia, Elena, and Ketanji ✊).  This is hugely problematic because the Court is meant to ensure “equal justice under [the] law,” and a stacked Court isn’t exactly positioned to equally represent the American people.

What’s more concerning is that the current conservative members of the Court are so committed to their own skewed principles as to eschew the very foundation of their authority.

That’s right, folks. I’m talking about good ol’ stare decisis, meaning “let the decision stand.”  In other words: legal precedent.

Is precedent really that important? I mean…yeah.  Even the Supreme Court agrees, finding in 1991 that 

stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.

Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)).

And yet, several of our sitting Justices have defied the precedent of the very Court they now serve, in favor of decisions which essentially turn their own social, political, and religious beliefs into the rule of law.  Among the Court’s more notable recent decisions is Loper Bright Enterprises v. Raimondo, No. 22-451 (U.S. June 28, 2024) which overturns the precedent of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and grants the determination of congressional ambiguity to the judicial branch.  In effect, the case significantly limits the power of the federal government and instead distributes said power to the courts, checks and balances be damned.

Equally as critical was the recent decision of Dobbs v. Jackson Women’s Health Organization, No. 19-1391 (U.S. June 24, 2022), which overturned the longstanding precedent of both Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) and 

Roe v. Wade, 410 U.S. 113 (1973) by stripping the Constitutional right to an abortion from U.S. citizens—a protection which had been in place for more than 50 years.

(Worth noting is that each of these decisions were largely favored by the six conservative Justices of the Court and opposed by the liberal three.)

Many have argued that the conservative Justices bear no ill intent in their disregard for precedent and are simply returning to the principle of originalism, whereby the legal interpretation of a text is predicated on its original meaning at the time of its adoption.  However, there’s a noted lack of evidence that the Founders themselves believed in originalism; instead, the argument is little more than a smokescreen to uphold the “prejudices and bigotries of long-dead generations in interpreting broad terms like ‘equal protection of the laws’.”

Yet I remain bound by the whims of the conservative Justices whose own internal ethics are so flawed that they have allowed themselves to sit on cases that fundamentally relate to their own personal interests.  Clarence Thomas’ wife, Ginni Thomas, is an ardent Trump supporter who was present at the White House rally on January 6, 2021, and sent a flurry of texts to then-White House Chief of Staff Mark Meadows in which she commands his support of Trump’s claims of election fraud.  While the Justices recently committed to recuse themselves from cases where their “impartiality might be reasonably questioned,” Thomas has shown zero interest in upholding this pledge, instead hearing oral arguments in a recent case addressing the prosecution of several insurrectionists.  

Even more painful is that I’ve sworn to uphold the law as determined by several Justices who have clearly signaled their belief that I am somehow less than human.  The Dobbs decision is an absolute disgrace that has dismantled existing precedent and somehow legitimized discussions as to when a woman’s body is truly her own.  I defy you to look me in the eyes and somehow argue that a 10-year-old girl who is impregnated by her rapist should be forced to carry that child to term.  Both that child and I have earned the right to possess our own bodies without intervention by a Court, which is primarily composed of men who will never be wounded by their own callous, unethical, and unlawful judgments.  

Given that there are very few circumstances by which a Supreme Court Justice is removed from their post (read: death or voluntary retirement), our options are quite limited.  

Perhaps it’s time for President Biden to exercise some of that newly imputed presidential immunity that the Court just awarded to our heads of state.  Given his (commendable) decision not to seek reelection, Biden can now do what is necessary to protect the integrity of our judicial system by expanding the Court without fear of any blowback on a reelection campaign.  Adding additional seats allows the President to restore balance and integrity to a judicial system that conservatives have governed for over 50 years.  

There are other options, of course.  Biden can establish a term limit for the Justices—a concept which was historically favored by the Chief Justice himself, in a 1983 memorandum wherein John Roberts argued that “‘setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence . . . It would also provide a more regular and greater degree of turnover among the judges’.”  Or, Biden could grant himself the unchecked authority to impeach those Justices who no longer uphold the values of their position (thereby rendering Congresswoman Alexandria Ocasio-Cortez’s recent articles of impeachment against Justices Thomas and Alito a moot point).  

Regardless of how we bring balance to the Court, one thing is clear: “[T]he Court has been captured” by a gang of conservative thugs who operate with impunity and without integrity.  

As young people are wont to do, I acted without a full understanding of the consequences in blindly committing myself to the whims of men who are happy to abuse their positions of authority in their pursuit of personal satisfaction and gain.  There is little I can do other than steel myself for a flurry of forthcoming unprincipled opinions and elevate my own objections thereto.  

It’s a hard truth, but the fact remains: I joined the wrong cult, and my nation is worse off for it.