It’s a good day to return to the question of the Supreme Court’s corruption and the necessity of reforming it in order to make democratic self-government possible again in the United States. The federal Constitution is an expansive document. Within the system begun with Marbury v. Madison — a system certainly subject to many reasonable critiques — it is possible to have more liberal or conservative jurisprudences, more activist or restrained courts, loosely tethered to the progress of presidencies and senates. The Roberts Court is a different beast. It is the product of a decades-long effort to corrupt the federal judiciary. That degree of corruption first came into full view in the second decade of this century when the Court openly began to do three closely interrelated but conceptually distinct things.
First, The Meaning of Words Is for Little People.
The Court has, with increasing boldness, manufactured new doctrines and purported constitutional dictates which simply do not exist in the document. Often they are implicitly or even explicitly ruled out by the plain text itself. The greatest example is the 2024 presidential immunity decision, a ruling contradicted not only by all the history of the document but its clear language. The framers knew how to create immunity. They did it for the work of Congress. They declined to do it for presidents. The decision is manufactured out of whole cloth. Whether the majority falsified this immunity because they thought it should exist and thus were entitled to create it or specifically for the benefit of Donald Trump hardly matters. It is corrupt, illegitimate and a wholesale attack on the Constitution itself.
The Court has also increasingly resorted to plainly absurd textual analysis to change the meaning of constitutional language which has never been in doubt. The current birthright citizenship case, whatever the majority decides, is another example. The simple fact that at least four justices believe this question has merit is a shattering indictment of the present Court. It is deeply rooted in the early 21st century version of the conservative legal movement that textual interpretation can and should take place as though words have no actual meaning, that new definitions can be manufactured and that the future of the country is not set by the Constitution, with all its real ambiguities, but by the degenerate creativity of law professors from obscure institutions stitching together what amounts to a jurisprudential emperor’s new clothes which five or six corrupt justices will pretend are real.
Second, The Choose Your Own Adventure Constitution.
Closely related to point one, the Court no longer has any consistent or even comprehensible jurisprudence. It simply has political goals it seeks to achieve: presidential immunity, an increasingly absolute right to firearms, a 14th Amendment focused primarily on race not actually existing. Arguments are chosen by convenience simply as backfill to arrive at the desired end. The corruption often emerges most clearly in those brief moments when the logical conclusions of the Court’s own arguments are too much for even it to bear. Again, we have a recent example. Presidents can fire anyone in the executive branch based on nothing more than the presidential will, even when Congress has specifically given those appointees protections against such dismissals. Except the Federal Reserve, even thought it is by every measure an independent federal agency constitutionally indistinguishable from the rest. Why is it different? Because Federalist Society ideologues actually don’t like inflationary monetary policy. So in this one case, it’s different … except when it’s not.
There is no magic to a consistent or comprehensible jurisprudence. Some justices like Sandra Day O’Connor arguably showed the wisdom of not having one. But it is at least a manner of interpreting the document and the system built up around it which puts some limits on the political will of the justices. Today that is all we have: the political will and aims of six justices. That is an abuse of power and corrupt.
Third, Political Power Is for Republicans Only
While the corrupt majority has consistently advanced and enforced an ideological vision of how the country should be run it has another, simpler brief: not allowing Democrats to govern when they are in power. When Republicans are in power, the powers of the presidency are almost limitless; when it’s Democrats, the office is enfeebled and hemmed in by a cobweb of invented doctrines. We had the ironic benefit of two Trump presidencies sandwiching a Biden presidency to make this principle of action crystal-clear. Quite simply, the corrupt majority ensures that only Republicans actually get the fruits of political victories.
In our thinned-out political discourse people often use the term “corruption” to refer only to venal corruption — bribes, conflicts of interest mostly involving money, kept justices like Clarence Thomas. That is neither the only nor the most significant form of corruption. In most cases venal corruption is significantly self-correcting. It gets exposed and prosecuted. It generally goes to some lengths to hide itself. The more general meaning of corruption is when a form of rot takes over an office or institution because of systemic and ingrained abuses of power. That is the case with the Supreme Court, and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The corruption has spun so far out of control because the six corrupt appointees believe, not unreasonably, that there are zero checks on their abuses. It is that sustained lack of accountability and impunity which moves an institution from one-off abuses of power toward the kind of ingrained corruption you now see in the Supreme Court. It is akin to when an institution goes from one-off instances of bribery involving individuals to one in which it is a normal and public way of doing business.
The Court is meant to be the final arbiter of important questions of law and constitutional interpretation. Simply calling balls and strikes has never been a realistic way of understanding what the Court does. But to paraphrase former justice Potter Stewart, you know the corruption when you see it. And we see the out-of-control corruption in the increasing willingness and brazenness with which the Court reaches down into judicial process to find notional bases upon which to make policy for the country which it simply desires to make, frequently ignoring the appellate process, the fact-finding of trials, basic issues of standing. The corruption runs so deep there is simply little effort any more to hide it.
The Supreme Court is given specific powers to achieve specific ends. Over the last 15 years, it has assumed vast new powers and used them consistently for anti-constitutional ends. Far from interpreting or defending the Constitution, it is at war with it. An orderly, proper and essential process of reform is entirely possible by simple statute law on simple majority votes. Without it, the country will remain hostage to the will of a corrupt and illegitimate majority, and democratic self-government will have no chance.