Why the American judicial system is currently doing more harm than good
With the appointment of Amy Coney Barrett to the Supreme Court, the sometimes silly circus of American constitutional law opens up a new season. The role of the Supreme Court has been central to American politics since Thomas Jefferson was elected president and John Marshall became chief justice in 1801 and the two clashed over the following eight years.
A well-informed friend of mine expressed the view that the United States had been thought of as a mature democracy with a stable judicial system presiding over the rule of law that most Americans respected. Alas, if there was such a time, it has vanished into the mists of history.
The Supreme Court has emerged as a deeply corrupt institution. How can I say this? To become a member, you must sell your soul to one group or another and then act in the interest of the group that got you the job. Federal judges are bought by one interest group or another when they are appointed. The Republicans and the Federalist Society have made this most explicit.
But the Democrats are not far behind. The bitter truth is that the justices now get their jobs by selling their future votes to their sponsor. The appointment of Justice Barrett is just the latest example, and this was made explicit by President Trump.
I have given some thought to the court’s activities as the pinnacle of the American legal system in the 21st century and come to five rather unexpected conclusions:
1. Failure to protect African and Native American rights
The court has been mixed up with the rights or oppression of African-Americans and Native Americans almost from its founding. The record of the American political system and the court when dealing with this problem is dismal.
Rather, it is a complete failure. There are many words about equality, but these are just that -- words. The reality is that Black Americans have been oppressed from the founding of the republic, and although no longer the property of White Americans, their economic and social status in the society is far below the White people’s.
The court has handed down decisions such as Brown purporting to end school segregation; but in reality, this has amounted to very little. By virtually every measure of social and economic achievement, Black Americans are disadvantaged, and there has been limited change over the past 50 years.
The circus of the nine justices dressed in black handing down learned judgments on racial equality is a sad irrelevance. The treatment of Native Americans is no better. The current court has failed in its duty; rather, it has worked to prevent actions to reduce racial inequality. Race as a matter for social and economic justice is not such an explosive issue in most countries.
The ultimate path to less racial discrimination is political power. Unfortunately, the conservative court has leaned against protecting the voting rights of African-Americans. It has said a lot about equality but the implementation is useless. Schools are more segregated now than they were when Brown was handed down. Suppression of voting rights has increased under the Roberts Court.
Listen to Eliza Doolittle in My Fair Lady:
“Words, words, words
I am so sick of words
I get words all day first from him
Then from you
Is that all you blighters can do”
That is the United States Supreme Court.
2. Lacking secular values
A second area that the Supreme Court loves to involve itself in deals with religious matters that emerge in the middle of a scientific society. The enormous argument over abortion falls into this category. A substantial number of persons -- perhaps 25% -- in America believe that God has said that abortion is murder, and hence should be against our earthly law.
There is no argument that God did say this or how one would demonstrate the validity of such a proposition. Nor even if he did, why this is the business of the secular courts. This group of people has worked itself into a frenzy over the abortion issue and used its political power to try to force the state to accept religious views.
There is a similar argument over sexual freedom; those who believe that their religion says that homosexual behaviour is against God’s word want to use the legal system to enforce some version of their religious views. These areas quickly move into scientific questions where religious persons wish to impose their beliefs usually based on some ancient text over the scientific view of an issue.
The most famous is the issue of evolution. The court, the political parties, and certain religious groups are now involved in a meaningless dance around these matters. The scientist looks on aghast at the infantile intellectualism manifest in the arguments. Are we actually arguing about what God said? Or what someone wrote down 2,500 years ago?
3. Wacky originalism
The wacky originalist views of some justices seem to be aimed at imposing their personal views through the idea that current issues must be settled by interpreting what some old guys wrote down 230 years ago.
Justice Barrett, just joining the court, seems to have this idea. These persons believe that the original writers of the constitution could foresee modern assault rifles, chemical weapons such as mace, and smart bombs dropped from high in the air. Also computers, modern medicine, airplanes, genetic manipulation. Apart from Benjamin Franklin, the authors of the American constitution had little scientific knowledge. What nonsense is this?
Our modern world could not be imagined by the authors of the constitution. The court prefers its own introspection to the application of scientific approaches to resolving issues. The judicial “way of knowing truth” has little meaning in the face of the tide of scientific knowledge. The judicial system in the United States is currently doing more harm than good.
None of these judicial brains has any idea of modern science; what knowledge is about, nor the power of mathematical methods to help in the understanding of problems. This blinds them to the reality of American life and problems.
4. By the people, for the people?
There may well be a relationship between the views of the court and the views of the public. The court will follow its own analysis and understanding of conflicts and disputes within the United States.
The court has often drifted far away from public views, insisting that its interpretation of the constitution is superior to popular opinion. But there are definite limits to how far the court could go. For example, if the court were to declare that the Social Security Program was unconstitutional, this would be unacceptable to the American people and the most likely outcome would be to ignore the court.
The court understands that if it drifts too far from public opinion, it will be discredited and the political system will change the court. When the court was declaring many of the legislative acts of the New Deal as unconstitutional, Roosevelt tried to expand the number of justices. That effort failed but the court got the point and stopped rejecting the New Deal legislation.
The Supreme Court operates within a democratic system and must respect the will of the people.
5. The need for modernization
The court will not survive in its present form. Terms of service must be limited. It is ridiculous for one person to serve in such a vital position for 30 years without refreshment of knowledge or experience. A ten-year term for a federal judge is long enough. If one is promoted from one level to another, then the total service will be longer, but one serves ten years and then finds another job.
Further, a major effort should be made to bring the modern world into the Supreme Court. Why can a scientist or a social scientist or an artist not sit and widen the basis of judgments?
Unless there is an effort to modernize the functioning and membership of the court, it will continue to be a corrupt institution with its members handing down judgments consistent with the values of the people that gave them the job.
Forrest Cookson is an economist who has served as the first president of AmCham and has been a consultant for the Bangladesh Bureau of Statistics.