The Supreme Court Is Profoundly Broken

For anyone who has been wondering about the disintegration of the American experiment, the Supreme Court is the perfect place to start. Forget the impressive marble façades, the imposing robes, the twice annual pronouncements on the meaning of the law: It’s all hollow form covering emptier function. Far from being the highest incarnation of the judiciary, a third branch balanced with another two, the Supreme Court has set a new mandate for itself: It does not serve this government of the people. Instead, we serve it.

Look no further than this session of the Court for proof of our subjugation. Already, in the early days of the Court’s edict season, we have experienced dismay at the further erosion of environmental protections (during a climate crisis no less), relief and surprise at the defense of voting rights for protected classes, and anxiety as to whether those same protected classes will maintain access to education. In barely two weeks, we will observe the anniversary of the Dobbs decision, which broke decades of precedent to authorize expansive state intrusion into the lives and medical decisions of those who can give birth. And by the time this session is over, we might live in a country where state legislators—regardless of the voters—determine who is President of the United States. 

The Supreme Court issues rules, and we are bound to live by them.

This would be one thing if the Court, in turn, had to operate as we see fit, but it is all but unaccountable. Justice Clarence Thomas sits on cases with clear conflicts of interest and has not issued so much as an apology after it was revealed that his Nazi memorabilia–collecting billionaire benefactor bought the house where his mother lives rent-free. Despite the sound and fury around the initial revelation, the Dobbs leak has resulted in no answers, no penalties, and no consequences—more than a year after all of these were promised. And when asked to publicly explain themselves, Chief Justice John Roberts wrote an obstinately obtuse letter to the chair of the Judiciary Committee, Sen. Dick Durbin (D-IL), that said such oversight was unnecessary.

Yet, they insist we govern ourselves.

Not only is this a republic, the Court and its advocates say, but this is the purest and truest manifestation of the Founders’ vision. The conservative majority has offered themselves as not merely assessors of the law as written, but rather interpreters of the desires and intentions of the men that framed this government. As if they are a living Ouija board for 18th-century slave-owning aristocrats.

In theory, the philosophy of “originalism” provides a baseline to check whether a law’s impact is aligned with its intention at the time it was drafted. In limited circumstances, it could be a valid and even useful interpretation of the Constitution, ensuring that the spirit of the law is showing up in the letter of it. But building an entire school of thought around “original intent” is a pretty significant stretch, given the ideological, moral, and philosophical diversity of the men who spent literal years hammering out a tentative agreement on a Constitution that they would alter twice more in 20 years after their good intentions met hard realities.

In practice, then, the conservative movement has used “originalism” as a pretext to ignore, undermine, or wholly repudiate any development that they insist the Founders (a somehow ideologically unified group with perfect consensus) would not like, while rarely, if ever, seeking out primary sources and grounded history to support their thesis. If it didn’t happen between 1776 and 1820, then it wasn’t meant to happen, apparently. And if it did happen in that span, then it was never meant to stop. The problems with this become more and more obvious the more thought that’s applied.

So conservatives don’t think. They react. And even as large (and growing) modern majorities endorse marriage equality, support pregnancies being private, climate change being an emergency, diversity being good and voting being better, the Court’s “originalist” majority is sad to report that the Founders’ Ouija board is giving a strong “no.”

Despite their worship of the Constitution, or perhaps because of it, the Supreme Court has become less of an institution and more of an exercise in raw power. And that’s not limited to the conservatives. Even so-called “liberal” justices demur on bribery and undisclosed gifts, engage in conflicts of interest like befriending reporters or court advocates, and affix their signatures to written rejections of accountability. It is the whole court that insists on a veil of secrecy in a supposedly free and fair society, rejecting cameras for the arguments and deliberations that will reshape the law itself. It is the whole court that has dismissed the growing public disapproval of their actions, as they have become unchecked and unbalanced in the system they are meant to belong to, not sit above.

Since it seems that everyone on the Supreme Court has taken the name a little too literally, the best response is to bring them back to Earth. It is hard to imagine that the true intent of the careful checks and balances drafted in 1787 was to result in a small council of unelected, unaccountable magistrates to rule for life over 350 million people and the final interpretation of every law. In fact, reviewing the document again, Article 3 seems almost an afterthought compared to the extensive powers delineated to Congress and the Executive branch. It becomes even more ridiculous when almost everything about the Supreme Court—and all the federal courts it sits above—are within the power of Congress.

It is Congress that has given away its powers, as much as the Court has usurped them. And it is we, the people of the United States, who have given away our power to Congress, rather than demand function and accountability for an increasingly unstable system. All we hear is about what can’t be done—from our representatives, from President Biden, from the Supreme Court. Our laws bind us tighter, strip our autonomy, subvert our authority, because we have a high court that insists upon interpreting them that way. The Supreme Court is broken, but fixing it isn’t their problem.

It’s ours.