May Thomas be the first to go.
“Our obligation is to define the liberty of all, not to mandate our own moral code.”
The Supreme Court in Planned Parenthood of Southeastern Pa. v. Casey
On his way out of office, President Biden proposed Supreme Court reform that, among other things, would place 18-year term limits on Supreme Court Justices. Justices currently serve a lifetime appointment, a peculiarity that is supposed to “insulate them from the temporary passions of the public, and allow them to apply the law with only justice in mind, and not electoral or political concerns.”
It’s arguable that life-long Supreme Court term limits have never worked. To the extent that it has, the reason is that over the past several centuries, the Court has widely viewed the U.S. Constitution as a living document – a document that, while rarely amended, must be dynamic enough to evolve in interpretation with the social evolution of the electorate. As I discuss in more detail below, this has been the way the Court has worked for a large proportion of the country’s history, but this historical approach to the interpretation of the Constitution and the function of the Supreme Court in contemporary society has shifted dramatically in the past eight years.
Through nothing more than sheer dumb luck, convicted felon Donald Trump had the opportunity to appoint three ultra-conservative judges to the bench. Kavanaugh, Coney-Barret, and Gorsuch are originalists. In Neil Gorsuch’s words, “[o]riginalism teaches only that the Constitution’s original meaning is fixed; meanwhile … new applications of that meaning will arise with new developments and new technologies.”
Fifty-eight percent of Americans currently disagree with this new, Trump-shaped Supreme Court. Like Trump, these justices represent a very loud minority of the electorate who long for days gone by of openly and proudly oppressing minorities, controlling women’s bodies, and dictating this country’s laws based on Judaeo-Christian ideas of morality. This is not (only) a matter of personal disgust: as the Supreme Court drifts further away from evolving ideas of national and international justice, imposing a minority’s views of right and wrong on a majority, the Court loses something important – legitimacy. At this point in our democracy, Supreme Court reform would help the Court maintain its position as a respected source of legal authority in American society.
A living constitution.
The Supreme Court is supposed to change with the times. It’s supposed to follow the flow of expanding principles of morality. It’s supposed to evolve and progress, not devolve and regress. During this country’s relatively short history, the Supreme Court could be relied upon to add legal justification to the evolving attitude of our citizenry. Examples abound.
In 1896 the Supreme Court heard Plessy v. Ferguson, a case in which a man with one-eighth African ancestry challenged a Louisiana statute requiring passengers with “discernible” negro heritage to use train coaches separate from (and inferior to) white passengers. Plessy argues that the Louisiana statute violated the 14th Amendment’s equal protection clause. Few people don’t know how this controversy ended, with the Supreme Court smacking down Plessy’s argument like Dikembe Mutombo. Holding that Louisiana was well within its rights to enforce a law requiring separate but “equal” train coaches for the different “races.” The Court repeatedly denied Plessy’s argument that this difference denoted the distinction of inferiority to the less-dominate negro race. The Court held that the separate but equal distinctions had nothing to do with stamping one race as superior and the other inferior and that, if that construction did exist, it was only because the colored race chose to adopt it. The Court argued that “[i]f the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”
Context is critical. Plessy was decided in 1896 – thirty-two years after the abolition of slavery and twenty-eight years after the 14th Amendment was ratified. The very idea of Black people being politically equal, not to mention socially equal, was all relatively new. The majority of the country – white people – were not on board. Reconstruction had failed, and backlash against Black progress was nearing a fever pitch. In the context of civil rights, the country had given as much as it wanted and aimed to give no more. The Court’s decision in Plessy reflected this dominant social attitude.
Around fifty years later, however, the context had changed dramatically. Black people had gained more economic power pre-and post-World War II, and the NAACP was forty years into strategically litigating Jim Crow laws, largely on the basis of unconstitutionality. Despite himself, President Truman established a Committee on Civil Rights in 1948. Segregation, while still the law in a lot of the land, was falling increasingly out of favor. On the wings of that forward-moving momentum, the NAACP challenged state laws denying Black children admission to White schools. In a legal about-face, the Supreme Court held that separate but equal laws were in fact violative of the 14th Amendment. In Brown v. Board, the Supreme Court acknowledged the role the passage of time and the evolution of minds played in its ruling. When addressing the Plessy court’s rejection of the argument that separate but equal laws stamped Black Americans as an inferior race, the Brown court accepted that “the policy of separating the races is usually interpreted as denoting inferiority of the negro group” and held that “any language in Plessy v. Ferguson contrary to that finding” was rejected.
This is an excellent example of a living constitution. There were no textual changes to the 14th Amendment between Plessy and Brown. The only change was time.
Bowers v. Hardwick and Lawrence v. Texas are other examples that implicate the 14th Amendment, but this time, the implied substantive rights in the Due Process Clause. In Bowers, decided in 1986, the Court adamantly refused to recognize a fundamental right for homosexual men to participate in private, sexual behavior in their own homes. To defend its point, the Court recited what it considered to be a comprehensive review of laws dating back to pre-colonial times condemning homosexuality. The Court went on to decide that the law’s justification, i.e., the presumption that a majority of Georgians believed homosexuality to be immoral, was sufficient to preserve the law’s application.
Not even twenty years later, the Supreme Court overruled their Bowers holding. In Lawrence v. Texas, a case involving an almost identical law to the Georgia law in Bowers, the Court recognized that the liberty protected in the 14th Amendment protected homosexuals’ rights to make choices to participate in homosexual activity in the privacy of their own homes. The Court specifically stated that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
Again, the substantive due process clause of the 14th Amendment did not change between 1986 and 2003. The wording remains identical. But the Supreme Court’s interpretation of the rights implied in that wording changed, based on what it called “an emerging awareness that liberty gives substantial protection to adult persons deciding how to conduct their private tlives in matters pertaining to sex.” Again, the “emerging awareness” was a cultural and societal shift away from homophobia towards inclusivity.
Now, we see the opposite. In 1973, amid the second-wave feminist movement, the Court decided Roe v. Wade, another case implicating the concept of personal liberty embodied in the 14th Amendment’s Due Process Clause. In Roe, the Court held that a woman’s right to privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Nearly fifty years later, after the end of second-wave feminism and third-wave feminism, in a world where every economic indicator illustrates the connection between poverty and motherhood, in the only developed country that doesn’t offer affordable (or free) childcare, guarantees no maternity leave, and has the highest maternal mortality rate in the developed world, we get Dobbs.
Judicial Context.
Let’s put this in perspective. Coney-Barrett, Gorsuch, and Kavanaugh would have upheld Plessy v. Ferguson. The Constitution classifies Americans of African descent as three-fifths of a person – that unequivocal classification would not allow for the forced integration of segregated schools as there is no evidence at all in the Constitution that Black people should have the right to enjoy the same social or educational spaces as white Americans. These justices would have agreed with the Plessy court which proclaimed “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” As Neal Gorsuch wrote in his defense of originalism, “a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences.”
This means that they would have also upheld Bowers v. Hardwick. Certainly, in determining the “original meaning” of the document, the judges would have ascertained and adhered to the ideals of morality largely held at the time of the Constitution’s writing—ideals that forbade homosexual acts and regarded them with disgust.
And, as we already know, they would have never given a woman dominion over her own ability to choose when to become a mother.
While they may not be able to revisit the separate but equal statutes, or criminalize private, consensual policy, they’ve already done everything in their power to roll back the clock on any progress Americans have made over the past century. They’ve ended affirmative action in college admissions, created law that allows businesses to discriminate against gay people, and declared illegal Biden’s attempt to relieve America’s young people of life-crippling debt.
Supreme Court Reform is essential.
These justices do not represent the majority of American people. They don’t represent the seventy (and growing) percent of Americans who don’t give a shit if gay people get married. They don’t represent the seventy percent of Americans who believe that racism is a serious problem in the U.S. They don’t represent the significant majority of Americans who believe that abortion should be legal in all or most cases. And they most certainly don’t represent the nearly eighty percent of people ages 18-29 that support a woman’s right to choose.
As liberal as millennials have proven themselves to be, generation Z goes even further. Not only does this conservative Supreme Court not represent the nation as it is today, it does not represent the nation as it will be in ten, twenty, or thirty years. It doesn’t even represent how the nation will be in eighteen years. Judicial turnover is essential. In a country with a living constitution, we cannot place our futures in the hands of a bunch of fucking zombies. We need Supreme Court Reform. Yesterday.
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