How to really fix the Supreme Court
The much-proclaimed but seldom realised belief that “no one is above the law” clearly requires help. If the supremely stupid Supreme Court has shown us anything it has shown us that no ideal of government, no law, no Constitutional amendment is safe from the people who run the government. After all, what good is any law if persons in power and of bad faith are prepared to pervert or even break it? Does there exist any legal structure so compelling that it can prevent bad and powerful people from finding language, however absurd or dishonesty contrived, from rationalising its subversion? I used to think so. I no longer do.
Constitutional scholar and Harvard professor emeritus Lawrence Tribe believes he has an answer to the problem we face today from the MAGA Supreme Court. His solution is threefold. I’ll quote the first one here: “[F]irst, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda.”
Notice that Mr Tribe includes, in his commendable attempt to repair the current Supreme Court, the words, “… possibly create several added seats …”. I submit this most weakly delineated recommendation of his first solution is in fact the strongest, and it is ultimately the only solution. All other solutions are just words on paper, and if Donald Trump in specific and Trumpism in general have taught us anything, they have taught us that laws mean nothing if they lack people of goodwill in government prepared to uphold them.
There exists no law or Constitutional proclamation that I know of so powerfully and unequivocally enshrined in words that a determined villain can’t twist beyond recognition and mould to a corrupt purpose. No amount of instruction or threat can compel the current court to do the right thing. We have already seen (twice!) that MAGA members of Congress were unwilling to impeach and convict Donald Trump of obvious crimes against the presidency. I put it to Mr Tribe with sincerely held respect: what makes you think that any law or any Constitutional amendment or any independent ethics committee could hold the current SCOTUS to any standard, if that law is ignored or that committee is composed of a majority of MAGA Republicans? We are treading on air.
The only realistic solution we have today is to get MAGA entirely out of government, or at least to lock away what few remain in a harmless minority. Beginning with SCOTUS, we must expand the court to at least 13 members. We must begin as soon as President Biden has won a second term. An expanded SCOTUS could immediately set about undoing the incredible harm this current crop of thugs has inflicted on the foundations of democracy. It could reinstate and strengthen Roe, repeal the doctrine of “official” presidential immunity, and hold corporations accountable to standards in the public’s best interest. An expanded SCOTUS could solve a lot of problems.
Next, we need to get a MAGA majority out of Congress and keep it out. I know that sounds a lot like a recipe for dragon stew: first you need to find a dragon. But I don’t make reality, I just occupy my little corner of it. Obviously we must vote. But we also must fight. We the people are the same “We the people” of the preamble to the Constitution, and if we don’t fight like hell then this 248 year old experiment in enlightened self-government might not make it to 249. In the end it’s all up to us. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.
Robert Harrington is an American expat living in Britain. He is a portrait painter.