Balkinization: Speaking out against the Supreme Court

Speaking out against the Supreme Court

Guest Blogger

Avi Soifer

Many of us consider the current course of the Supreme Court to be disastrous.

John Leubsdorf and I began to wonder what we might do in response beyond our teaching and writing critical articles. The statement below, now endorsed by over 200 law teachers, is one possibility. And the forthcoming convening of the 118th Congress, as well as revelations about further ethical lapses emanating from the Court, make it seem even more important to speak out now.

If you agree, please join us by clicking this link.

The final deadline is December 15, 2022, after which we will seek press coverage.

U.S. Supreme Court Law Teachers' Letter

We, the undersigned teachers of law, believe that the recent course of U.S. Supreme Court decisions poses a severe threat to our Constitutional order, and call for reform of the Court to restore balance and democracy. It is increasingly reasonable to perceive the Court as imposing a one-sided, partisan line without regard for precedent or consequences. It is losing its key role as a legitimating balance wheel of our Constitutional system.

We differ in our political and judicial philosophies and our views about particular decisions and opinions. Nonetheless, we agree that the Court’s recent course is profoundly destabilizing and calls for correction that goes beyond the usual academic critiques.

This is not the first time that a Court majority has gone off the rails. In 1857, for example, the Court in Dred Scott tried to impose the lawfulness of slavery on the whole nation. Four decades later, the Court ruled that “separate but equal” treatment of African Americans was all the Fourteenth Amendment required of states. It likewise rejected challenges to laws preventing African Americans from voting; invalidated the federal income tax; and upheld abusive injunctions against labor unions. In the early 1930s, the Court struck down three major New Deal statutes, as well as a state minimum wage statute for women. In our opinion, the current Court majority has created a comparable crisis. A vigorous response is essential.

Because of longer life spans, Justices chosen to match a particular President’s ideological platform can now implement that platform for many decades. The appointment of new Justices has become increasingly partisan—and, at times, the result of deliberate manipulation by Senators and retiring Justices.

The current Court has severely restricted the ability of citizens to seek redress in federal court for violations of their constitutional rights, while simultaneously undermining the ability of Americans to rely on free and fair elections. Some decisions claim to rely on the words of the generation of the Founders, while others reject firmly rooted traditions in matters such as gun regulation and the separation of church and state. Next Term, the Court seems poised to strike down state court voting right protection and affirmative action in higher education, as well as LGBTQ protections provided through state and local laws.

The spate of recent partisan decisions threatens extremely serious consequences, now ranging from severely reduced reproductive rights to climate change. As extreme decisions accumulate, they destroy the legitimacy of the Court as the voice of the Constitution. Yet this may be only the beginning. The Court lacks respect not only for precedents, but for the roles and responsibilities of lower courts.

We urge the legal community and an aroused public opinion to join us in declaring that the Court’s current course is entirely unacceptable. Court reform is imperative. An enforceable ethics code, changes to the appointment system, and term limits should be on the table. Preserving the effectiveness of the Court in our Constitutional structure is important to all Americans, as is turning it away from reckless partisanship. Now is the time to act.

Avi Soifer is Professor of Law at William S. Richardson School of Law at the University of Hawai’i. You can reach him by e-mail at soifer@hawaii.edu.

Posted 12:30 PM by Guest Blogger [link]