Supreme Court on Wrong Side of History?

www.ozy.com [OZY]() Your World. Bold & Bright [Daily Dose]( Sponsored by [Cariuma]( The newsletter to fuel — and thrill — your mind. Read for deep dives into the unmissable ideas and topics shaping our world. Jun 24, 2022 Today Gun control, abortion rights, voting restrictions — all are issues on which the Supreme Court is [not aligned with public]( opinion. Decisions announced this week have led many to wonder what’s driving this institution to its current low in public trust and regard. But a deeper look at the court’s past shows that being on the wrong side of history is nothing new. And, intriguingly, the court’s power may not be as absolute as it seems. – with reporting from Dave Mountain, OZY exclusive [Trust the numbers]( [Cariuma]( We’ve told you how good these shoes are, but if you don’t want to take our word for it, or the words of over 15,000 5-star reviewers… consider this. [Over 61,000 people]( were on the wait list to get their hands on these, and they are now back in stock. (For now.) Take your choice of over 10 colors and if you use the code OZY2022, you also [get an exclusive $15 off](. Do it now! [Shop Now]( Third and not quite equal Born through (quick) compromise Much of the court’s power is not in the U.S. Constitution, and no government in the world had a third branch before the American experiment. The framers were mostly worried about disputes between states, so [the court was to serve as a referee](. The idea that the court would have a direct role in everyday life was not envisioned by the framers. Additionally, the Constitution provides [scant detail]( on how the court should conduct itself, and the first court was notable mostly for its [irrelevance](. Then John Marshall took control John Marshall, the first Supreme Court justice of [consequence](, is more responsible for the court’s power than any other American. In 1803’s Marbury v. Madison, he gave the court the power of judicial review. This lets justices strike down laws solely based on their interpretation of the Constitution. Marshall’s 1803 [power grab]( did not go without strong comment. Thomas Jefferson, a political ally of Marshall’s, hated the practice of judicial review so much that he considered it a threat to democracy. [What do supermodel Nina Adgel, comedian Pete Davidson, and actress Helen Mirren have in common?]( [Cariuma]( They've all been seen stepping out at A-list celebrity events in comfy and stylish [Cariuma]( sneakers. It's no wonder, with bold and saturated colors that are fashion-first and Internet-famous, that these are the shoes of the moment. But you don't have to pay celebrity prices with us. [Use the code OZY2022 and save $15!](. [Shop Now]( Some of the court’s worst moments That time the court started a war In 1857, the court held in Dred Scott v. Sandford that persons of African descent could not be citizens. [This decision destroyed any remaining chance of bringing slavery to an end outside of military means](, as it forced free states and any new ones to uphold slavery. The ensuing conflict was the bloodiest war in U.S. history, the modern equivalent of 6 million people dying in battle. The Union did not adhere to the court's decision in Dred Scott v. Sandford during the Civil War, and the 13th and 14th Amendments later struck it from precedent. Green light for Jim Crow The court didn’t reform after Scott. In 1896’s Plessy v. Ferguson, it gave [a green light to generations of segregation laws]( by ruling that separate facilities for people of different races were permissible. These laws also obstructed the votes of people of African descent through poll taxes, citizenship tests and other barriers. Furthermore, these laws fostered a system of [de facto slave labor]( and gave rise to decades of [state-sponsored terror](. ‘Three generations of imbeciles is enough’ The court picked up fans in the Third Reich with its pro-eugenics ruling in Buck v. Bell. This infamous 1927 case held that states could forcibly sterilize women who were deemed undesirable. The above quote about “imbeciles” reflected the majority opinion, which led to tens of thousands of involuntary procedures on women in the ‘20s and ‘30s. Buck v. Bell was later[cited by Nazi defendants]( at the Nuremberg war trials. Americans in domestic concentration camps A better-known case of judicial malpractice came in 1944, when the court [sided with President Franklin Delano Roosevelt’s military order]( to force the internment of over 120,000 Americans of Japanese descent. In Korematsu v. United States, the court held that the chance to stop espionage could justify a racist act, a decision that has since been [rejected](. Reparations of up to [$20,000 per person]( for Korematsu were given to survivors and descendants in the Civil Liberties Act of 1988. The court cited an inclination to avoid repeating the Korematsu travesty in its ruling against a Muslim travel ban in the 2018 case Trump v. Hawaii. Not just the distant past Just this once, we’ll pick the president The court’s 5-4 decision in 2000’s Bush v. Gore, which ruled to stop the vote recount in Florida, ended the election and awarded the presidency to George W. Bush. Nearly all of the justices who had been appointed by Republican presidents sided for the Bush campaign, while nearly all those appointed by Democrats ruled for Gore. This blew a hole through the modern belief that justices were neutral.The conservative majority also stated that “our consideration is limited to the present circumstances,” as opposed to any legal [precedent](. Money buys speech In 2010’s Citizens United v. Federal Election Commission, the court ruled that restricting corporate donations to a political campaign unfairly limited free speech. The result was billions of dollars in new political spending by “[super PACs](,” and more opportunity for moneyed foreigners to influence American politics. What’s more, if money is speech, then Americans of lesser means have lesser ability to participate in the democratic process. [TAKE OUR POLL]( WATCH ANITA HILL on [The Carlos Watson Show](! Can the court do better? Disinfect with sunlight The recent uproar over the leaking of a draft opinion illustrates how the court's deliberations, proceedings and inner workings remain mostly secret. And secrecy has not helped the court’s[plummeting public approval ratings](. Should its deliberations be made public? Develop a code of conduct The Supreme Court is the only U.S. judicial body without a code of conduct. Justices can choose to hear any case, including those in which they have a personal or financial interest. The question of whether the court ought to have a [formal ethics code]( is currently an urgent matter, as Ginni Thomas, wife of Justice Clarence Thomas, has become a [person of interest]( in the Jan. 6 insurrection. End lifetime tenure At the dawn of the United States of America, lifetime tenure in the Supreme Court was seen as necessary, as it allowed judges to decide cases without worrying about their jobs if a new party took over. In the modern era of increased human lifespans, however, judges often serve well into their 80s. So perhaps lifetime tenure results in outsized power. Rethink review Conceived by Marshall and loathed by Jefferson, judicial review is not an essential fixture of the court: It could be changed. Revoking this 200-year-old tradition may seem like an extreme step, but as legal commentators now wonder if justices are little more than “[politicians in robes](,” extreme steps may be warranted. Expand the Supreme Court The case for having more than nine Supreme Court justices [may not be a partisan matter](. In fact, it might be a matter of mathematics. Critics have long suggested that the highest court in a nation of 330 million people ought to have more justices than it did when the population was 40 million, as it was in 1869, [when the court last expanded](. [TAKE OUR POLL]( Community Corner Do you have an idea about how to reform the Supreme Court? Share your thoughts with us at OzyCommunity@Ozy.com. ABOUT OZY OZY is a diverse, global and forward-looking media and entertainment company focused on “the New and the Next.” OZY creates space for fresh perspectives, and offers new takes on everything from news and culture to technology, business, learning and entertainment. 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