Fixing the Supreme Court

Supreme Court Exposes America’s Broken Constitution

Written by Daniel Jennings and published in 6/30/2022

The US Supreme Court’s horrendous Dobbs decision exposes how America’s Broken Constitution is failing us.

To explain, Dobbs v. Jackson Women’s Organization reverses Roe v. Wade and gives states and the federal government the right to ban abortion. Yet, Pew estimates 61% of American adults said abortion should be legal in most cases in a March 2022 poll.

Hence, the US Supreme Court ignores popular opinion. Worse, some Supreme Court Justices seem they have a God-given duty to ignore public opinion. In his Dobbs opinion Justice Samuel A. Alito Jr. writes, “the Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights.”

Nine-Would-Be Dictators

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” John Emerich Edward Dalberg Acton, first Baron Acton.

Therefore, America has nine would-be dictators sitting in a Temple like building in Washington, DC, who think they can behave like gods on Mount Olympus or the Soviet Politburo. To elaborate, the Supremes think they can do whatever they want and face no consequences.

Nor is just abortion on which the Supremes ignore public opinion. In a case called New York State Rifle & Pistol Association Inc. v. Bruen ruled a New York State law requiring a license to carry concealed guns unconstitutional. A 16 June 2022 Siena College Research Institute poll found 79% of New Yorkers support the Sullivan Act, the law of New York State Rifle & Pistol struck down.

This situation exists because of our broken Constitution. In particular, I think two provisions to the Constitution Article III and Article I, Section Three create the menace of an all-powerful US Supreme Court.

How the Constitution Creates an All Powerful US Supreme Court

“Unlimited power is apt to corrupt the minds of those who possess it.” William Pitt the Elder, Earl of Chatham, British Prime Minister.

To explain, Article III creates a Supreme Court but sets no rules or guidelines for that Court.

Article III Section 1 states: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Article III does not define the Supreme Court, set any qualifications for its members, or define a process for selecting justices. Indeed, it does not even require justices to be attorneys. Nor does Article III define the Justice’s powers or the number of justices.

Thus, we have Supreme Court Justices who serve for life and can only be removed by a two-thirds vote of the US Senate. Hence, Supreme Court justices are unaccountable to the people.

I don’t blame the Constitution’s author James Madison for this mess. Madison could not have known what havoc his vague paragraph could unleash. Notably, there was no such thing as a Supreme Court anywhere on Earth in 1787. America’s Supreme Court was the first.

Instead, I blame Congress for not exercising any authority over the Supreme Court or trying to limit its power. Worse, Congress has made no effort to bring America’s Supreme Court system into line with foreign courts.

America’s Undemocratic US Senate

Article 1, Section 3 of the Constitution states “The Senate of the United States shall be composed of two Senators from each State.”

I think Article 1, Section 3, is bad because it makes no provision for population differences between the states. Hence, America’s most populous state, California with 39.613 million people and least populous state Wyoming, with 581,075 people each have two Senators.

In detail, a US Senator from California represents 19.81 million people while a Wyoming US Senator represents 290,538 people. Thus, a Wyoming US Senator represents fewer people than the population of Riverside, California, (327,569).

Article 1, Section 3 creates an unrepresentative US Senate that appoints an Unrepresentative US Supreme Court. For example, I estimate there are 14 US states with populations under two million. Yet 28 US Senators represent those stations.

Furthermore, I estimate the combined population of America’s two most populous states, Texas and California, have a combined population of 70.634 million people. Four US Senators represent those 70.634 million people.

I estimate America’s seven least populous states have a combined population of 4.601 million. Yet 14 US Senators represent those states. To elaborate, those states are Delaware, South Dakota, North Dakota, Alaska, Vermont, and Wyoming.

This affects the US Supreme Court because the Senate approves the President’s Supreme Court nominees. Furthermore, Article III gives low-population, mostly white rural, and Conservative Christian states more seats in the Senate.

Consequently, America has a Senate full of people who see nothing wrong with Dobbs v. Jackson Women’s Organization and New York State Rifle & Pistol. Even though most Americans disagree with those decisions. In such an environment, it is impossible to hold the Supreme Court justices accountable for their actions.

What We Can Do About the US Supreme Court?

I think there are many reforms we could make to the US Supreme Court to make it more accountable and democratic. Those reforms include:

1. Term Limits

Currently, federal judges, including US Supreme Court Justices, serve for life, which makes them unaccountable. We could change this by restricting Federal Judges (including Supreme Court Justices) to a 10-year term. At the end of the term, Congress will have to approve a second term. I would also restrict Supreme Court Justices to 20 years or two terms. Hence, no more service for life.

2. Increase the Size of the US Supreme Court

The US Supreme Court is too small to litigate for a nation of 334.9 million people. We need a larger US Supreme Court that is more representative of the nation. A larger court will make the US closer to the world standard. For example, India has a Supreme Court with 32 members. I suggest a US Supreme Court of 35 members. One advantage to this arrangement is that Justices will could form committees to handle more cases and delegate authority.

3. Depoliticize the Nomination of US Supreme Court Justices

My suggestion take the nomination of Supreme Court Justices away from the president. Instead, turn it over to a committee of law professors or judges. The US Senate could still approve the nomination, but the beginning of the process will be unpolitical.

4. Have a group of ordinary citizens that reviews the Supreme Court and its decisions

Give this body the power to suspend Supreme Court Justices and refer them to Congress for impeachment.

5. Make it easier to impeach Supreme Court Justices

Currently, you need a two-thirds vote of the US Senate to impeach a Supreme Court Justice. Allow the Senate or both houses of Congress to remove Supreme Court Justices with a 51% vote.

6. Make the US Senate more representative of the American people

My suggestion add one US Senator to each state’s delegation for each five million people in population. This system could give Texas, which has around 30 million people, eight US Senators and California nine US Senators. Hence, we could have the US Senate that reflects the American population.