Six
of the seven justices in the majority were Democratic appointments. The
one who wasn’t, Samuel Nelson, was nominated by John Tyler, who was a
Democrat before running on the Whig ticket with William Henry Harrison.
Five of the justices were appointed by slave owners. At the time of the
ruling, four of the justices were slave owners. And the chief justice,
Roger Taney, was a strong Democratic partisan who was in close
communication with James Buchanan, the incoming Democratic president, in
the weeks before he issued the court’s ruling in 1857. Buchanan, in
fact, had written to some of the justices urging them to issue a broad
and comprehensive ruling that would settle the legal status of all Black
Americans.
The Supreme Court, critics
of the ruling said, was not trying to faithfully interpret the
Constitution as much as it was acting on behalf of the so-called Slave
Power, an alleged conspiracy of interests determined to take slavery
national. The court, wrote a committee of the New York State Assembly in
its report on the Dred Scott decision, was determined to “bring slavery
within our borders, against our will, with all its unhallowed,
demoralizing and blighted influences.”
The
Supreme Court did not have the political legitimacy to issue a ruling
as broad and potentially far-reaching as Dred Scott, and the result was
to mobilize a large segment of the public against the court. Abraham
Lincoln spoke for many in his first inaugural address
when he took aim at the pretense of the Taney court to decide for the
nation: “The candid citizen must confess that if the policy of the
government upon vital questions, affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court, the instant they
are made, in ordinary litigation between parties, in personal actions,
the people will have ceased to be their own rulers.”
As
much as ours is a dire moment for the future of the American republic,
we can at least rest assured that we aren’t living through 1857 or 1860
or 1861. Santayana notwithstanding, history does not actually repeat
itself. But this Supreme Court — the Roberts court — is playing its own
version of the dangerous game that brought the Taney court to ruin. It
is acting as if the public must obey its dictates. It is acting as if
its legitimacy is incidental to its power. It is acting as if it cannot
be touched or brought to heel.
The Supreme Court is making a bet, in other words, that it is truly unaccountable.
The Long, Troubled History of the Supreme Court—and How We Can Change It It’s time to admit that the nation’s highest court has been a source of harm more often than it’s been a force for justice. by Louis Michael Seidman
Illustration by Adrià Fruitós.
B y now, it should be abundantly clear
that our antiquated Constitution, written over two centuries ago by
white men to govern a small, slave-dependent republic huddled along the
Eastern Seaboard, does not meet the needs of the sprawling, multiethnic,
and complicated country that we have become.
For anyone who doubts this proposition, consider the following facts.
In two out of the last six presidential elections, a candidate became
president even though he lost the popular vote. Virtually all of the
money and attention in presidential elections are devoted to a tiny
number of swing states that determine the outcome. The Constitution
vests in state legislatures the power to appoint presidential electors
whether or not they are chosen by a popular majority—a power that Donald
Trump tried to take advantage of in 2020, and may well take advantage
of in 2024.
Additionally, nine individuals, appointed for life and responsible to
no one, regularly make crucial and unreviewable decisions about matters
such as the structure of health care in the United States, the nature
of marriage, the right of women to reproductive justice, and the powers
of the federal government and the states. All the justices on the
Supreme Court insist that they are neutral and apolitical public
servants who do no more than follow “the law” as it is written. Yet they
are nominated by a process drenched in raw partisanship, and their
votes regularly align with the partisan views of the people who appoint
them. Republican presidents have appointed 15 of the last 22 justices to
the Supreme Court, even though they won the popular vote in only five
of the last 15 elections. The last Democrat to serve as chief justice
was Fred Vinson, whose brief and largely undistinguished career ended
almost 70 years ago.
The Constitution protects the rights of people who want to make
movies catering to individuals who get sexual pleasure from witnessing
the sadistic crushing of innocent animals. Yet it doesn’t explicitly
protect the rights of women, and it does nothing to protect the rights
of all of us to live in a world that is not ravaged by global warming.
Huge popular majorities favor measures including more effective
gun regulation, limitations on campaign spending, and reductions to the
cost of prescription drugs, yet because of the political structures that
the framers imposed on us, we are unable to accomplish those
objectives.
These facts, and many more like them, should make any sensible
person skeptical about our Constitution and about the role it plays in
modern political culture. And yet constitutional skeptics almost never
get a fair hearing. Instead, American politics is saturated by reverence
for an ancient and anachronistic document, written by people who in
many cases owned other human beings, and never endorsed by a majority of
the inhabitants of our country.
Liberals and conservatives, Democrats and Republicans, Congress
members and Supreme Court justices, all insist on their own partisan
versions of constitutional obedience while our political culture
collapses, crucial public needs go unmet, and the ties that bind us
together as a country fray. We need to understand that conventional
constitutionalism is irrational and wrong. It attaches religious
significance to a decidedly secular and deeply flawed document. It is
standing in the way of saving our country. It has got to stop.
P erhaps the most inviting target for
constitutional skepticism is the United States Supreme Court. There is
no necessary association between the Supreme Court and American
constitutionalism. All federal officeholders take an oath to support and
defend the Constitution, and one could imagine a system in which the
Constitution was enforced by Congress, the president, and state
officials. Still, in American constitutional culture, the Supreme Court
has assumed such a central role that it is often taken to be the
embodiment of constitutionalism.
The justices themselves do everything they can to promote this image.
They protect their reputation by working in secret. According to
hallowed tradition, no one other than the justices attends the sessions
where cases are actually decided. The justices rarely hold press
conferences or make public statements. Moreover, the quasi-religious
claptrap that surrounds the court—the robes the justices wear, the
marble temple in which they are housed, the solemnity and formality of
the oral arguments that they conduct—is meant to symbolize the grandeur,
neutrality, impersonality, and majesty of the law, and of the
Constitution whence it derives.
An interlocking web of myths buttresses this imagery. The
justices are thought to be brilliant jurists who work extraordinarily
hard. They are wise women and men who take the long view and are above
the petty squabbling that engulfs the rest of the government. They are
apolitical public servants who lead monastic existences devoted solely
to the rule of law. Their independence guarantees that they are
answerable to no political party or faction, but solely to their
conscience and to the US Constitution.
All of this is arrant nonsense. Historically, the Supreme Court
of the United States has been populated mostly by people of decidedly
ordinary intellect and ability who have gotten pretty cushy jobs through
their political connections. The notion that independence—insulation
from political accountability—guarantees that justices will be motivated
by devotion to the law rests on a logical fallacy and has little
empirical support. In fact, unaccountability produces just what one
would expect: a freedom to indulge personal quirks and obsessions.
Here are just a few examples of the judicial failings that should give any thoughtful court observer pause:
Marshall law: An engraved portrait of Chief Justice John Marshall (1755–1835) from the early 1800s. (Stock Montage / Getty Images)
§ In the early 19th century, John Marshall saw no problem with
serving as secretary of state and chief justice of the United States at
the same time. In perhaps the most famous case in American legal
history, Marbury v. Madison , Marshall as chief justice ruled on the legal implications of actions taken by Marshall as secretary of state.
§ Also during the 19th century, Justice Henry Baldwin was
hospitalized for “incurable lunacy” and missed an entire term of the
court. He nonetheless returned to the bench and remained on the court
for years. Richard Peters Jr., the Supreme Court’s reporter of
decisions, stated that “most courtroom observers of Baldwin agreed that ‘his mind is out of order .'”
§ Justice Robert Grier, who had suffered a disabling stroke, cast
the deciding vote in one of the most crucial decisions in American
history, holding that Congress lacked the power to make paper money
legal tender. Unfortunately, it appears that he acted without having any
clear idea of what case he was voting on.
§ Justice James McReynolds was a notorious racist and
anti-Semite. He was unremittingly hostile to his colleague Louis
Brandeis because Brandeis was a Jew. When Charles Hamilton Houston, the
renowned African American civil rights attorney, argued before the court
in 1938, McReynolds turned his back on him. He also referred to Howard
University as the “[n——] university.”
§ Justice Charles Whittaker was often unable to decide how to
vote or to keep up with his work. Once, when assigned to write a
majority opinion, he ended up turning the task over to Justice William
O. Douglas, who, out of pity, ghostwrote it for him even though Douglas
had also written the dissenting opinion.
Hooded justice:
Supreme Court Justice Hugo L. Black acknowledges his past membership in
the Ku Klux Klan in a nationwide radio broadcast on October 1, 1937. (MJS / AP Photo)
§ Shortly after he was confirmed as a justice, Hugo Black faced a
huge scandal about his membership in the Ku Klux Klan. Reporters for the
Pittsburgh Post-Gazette discovered that although he had
officially resigned from the Klan at the beginning of his campaign for
the US Senate, Black rejoined the organization and was given a lifetime
membership.
§ After becoming an associate justice, Abe Fortas regularly
provided advice to his former client, President Lyndon Johnson, even
though the Johnson administration was often a party before the court.
Fortas was forced to resign when it became known that he had accepted
payments from various interests with potential business before the
court.
§ While serving as a law clerk for Justice Robert Jackson,
William Rehnquist prepared a memorandum arguing that the court should
reaffirm the “separate but equal” doctrine announced in Plessy v. Ferguson .
When confronted with the memo at his confirmation hearing, Rehnquist
swore under oath that, contrary to what the memo in fact said and
despite persuasive evidence from contemporaries, it did not reflect his
personal views.
§ During oral argument in an employment discrimination case,
Chief Justice Warren Burger announced that women were better at
secretarial work than men were. He reportedly told his law clerks that
Blacks made talented gardeners because they had a great sense of color,
but that they could not get mortgages the way Jews did because Jews were
generally more able and trustworthy. Women should not be allowed to
serve as judges in rape trials, he added, because they were too
emotional and incapable of fair judgment.
There are enough examples of this sort of behavior to be
troubling. (And this is without touching on the misconduct of modern
justices—for example, Brett Kavanaugh’s bizarre and likely perjurous
testimony before the Senate Judiciary Committee, or Clarence Thomas’s
blatantly partisan extrajudicial diatribes.) Moreover, the secrecy that
surrounds the court means that we have no way to know how many other
instances of incompetence, misconduct, or florid eccentricity have
influenced the court’s work. Still, I do not mean to claim that these
examples are representative. No doubt most justices have done their best
at what is a difficult job.
In some ways, the more serious problem is not flagrant incompetence
or mendacity but plain-vanilla mediocrity. For every Louis Brandeis,
there are many Sherman Mintons. For every William Brennan, there are
many Gabriel Duvalls. The truth is that most of the justices have gained
their seats because of inside connections, political deals, or
ideological commitments. Their performance on the bench is consistent
with what one would expect from individuals selected on this basis.
If one looks at paper credentials, the modern court scores higher
than the historical average. All of today’s justices have distinguished
academic records, and there is no reason to doubt their intelligence.
That said, their range of experience is limited. None of the justices
has had to meet a payroll for a private business or make decisions
outside of a huge bureaucracy. None has run for or served in elective
office. Although the Supreme Court hears many criminal cases every year,
no sitting justice has ever served as a criminal defense attorney,
although this will change when Ketanji Brown Jackson joins. The court
regularly decides technical and complex cases about specialized matters
like patent law and employee benefits law, but no sitting justice has
devoted significant time to studying these matters. The court’s opinions
routinely rely on empirical assumptions, but the justices appear
woefully ignorant of statistical method. There is little evidence that
many of them know much about the social sciences, much less about
philosophy, literature, or the hard sciences.
Perhaps more significantly, no one should confuse the justices
with apolitical and neutral students of jurisprudence. Many of them got
their jobs because they were connected to politically powerful figures.
Consider in this respect Justice Antonin Scalia’s unintentionally
damning defense of his failure to recuse himself from a case in which
Vice President Dick Cheney was a named party after Scalia had gone duck
hunting with him:
Many Justices have
reached this Court precisely because they were friends of the incumbent
President or other senior officials—and from the earliest days down to
modern times Justices have had close personal relationships with the
President and other officers of the Executive. John Quincy Adams hosted
dinner parties featuring such luminaries as Chief Justice Marshall,
Justices Johnson, Story, and Todd…. Justice Harlan and his wife often
“stopped in” at the White House to see the Hayes family and pass a
Sunday evening in a small group, visiting and singing hymns. Justice
Stone tossed around a medicine ball with members of the Hoover
administration mornings outside the White House. Justice Douglas was a
regular at President Franklin Roosevelt’s poker parties; Chief Justice
Vinson played poker with President Truman.
Modern justices have also been cozy with political figures, and their
prior service has established deep ties of personal and political
loyalty. Here are some examples:
§ In his younger years, Chief Justice John Roberts served as
associate White House counsel for Ronald Reagan and as the principal
deputy in the Solicitor General’s Office for George H.W. Bush.
§ Justice Samuel Alito worked as assistant solicitor general and at the Office of Legal Counsel under Reagan.
§ Justice Stephen Breyer worked in the Johnson Justice Department
and was special counsel to the Senate Judiciary Committee while it was
under Democratic control.
§ Justice Elena Kagan befriended Barack Obama while they were
both teaching at the University of Chicago Law School. She went on to
serve as special counsel to the Senate Judiciary Committee under Joe
Biden, as associate White House counsel and deputy assistant to the
president for domestic policy under Bill Clinton, and as solicitor
general under Obama.
§ Justice Kavanaugh drafted the Starr Report, which claimed that
Clinton had committed potentially impeachable offenses; worked for the
George W. Bush campaign on the Florida recount in 2000; and served as
Bush’s staff secretary in the White House.
There is nothing dishonorable about service in any of these
positions. Still, it strains credulity to believe that the justices
suddenly shed their political predispositions upon assuming the bench.
N one of this would matter much but for
the fact that the justices exercise extraordinary power—and throughout
the court’s history, they have used this power to render many, many
truly terrible decisions. This is not the place for a comprehensive
history of the Supreme Court, but some highlights from that history
convey a sense of the role that the court has played in our political
and legal culture.
In the earliest days of the republic, Federalist judges,
including Supreme Court justices, vigorously enforced the Alien and
Sedition Acts, which criminalized criticism of the president and
resulted in the jailing of opposition leaders throughout the country.
Historic injustice:
An engraving of Dred Scott, the plaintiff in the infamous 1857 Supreme
Court case that denied citizenship to African Americans.
In the run-up to the Civil War, the court consistently sided with slave owners. For example, in Prigg v. Pennsylvania ,
Justice Joseph Story, writing for the court, held that a Pennsylvania
law that prohibited the extradition of African Americans for the purpose
of enslaving them was unconstitutional. In the Dred Scott decision,
Chief Justice Roger Taney, writing for the court, held that even free
African Americans could not be citizens of the United States and that
Congress’s efforts to outlaw slavery in the territories were
unconstitutional.
After the Civil War, Congress enacted Reconstruction legislation that
amounted to a comprehensive program to eradicate the “badges and
incidents of slavery” and to protect the newly freed men and women from
violence and discrimination. Fearful of judicial interference, the
Reconstruction Congress enacted the 14th Amendment to insulate its
program from constitutional attack. Unfortunately, the court read the
amendment in an indefensibly narrow fashion and proceeded to invalidate
much of the Reconstruction program.
When political pressure on the South eased, Southern states enacted a comprehensive system of racial apartheid. In Plessy v. Ferguson ,
the court, in an infamous opinion by Justice Henry Billings Brown,
found that this “separate but equal” regime was constitutionally
permissible.
Wronged by the court: Carrie Buck, plaintiff in Buck v. Bell (1927), in which the Supreme Court approved a vast forced sterilization program.
The court did no better at enforcing civil liberties during this
period. Throughout the 19th century, it regularly ignored infringements
on speech and free exercise rights. In an especially shameful decision,
the court gave its approval to a massive eugenics program that resulted
in the forced sterilization of thousands of women.
With American entry into World War I, the Wilson administration
embarked on a vigorous program to suppress dissent, utilizing the
Espionage Act of 1917 and Sedition Act of 1918 to jail many opponents of
the war. The court upheld these convictions in every case that came
before it, including the conviction of the Socialist Party leader Eugene
Debs, who received millions of votes for president while sitting in a
jail cell.
In the late 19th and early 20th centuries, populism and
progressivism emerged as an important political force, and state
governments began to enact various forms of economic regulation. For
example, state statutes mandated minimum wages and maximum hours;
prohibited “yellow dog contracts,” which prevented workers from forming
unions; and provided for the price regulation of public utilities. The
Supreme Court’s response to these reforms was uncertain and inconsistent
but, in general, hostile.
In 1905, for instance, the Supreme Court decided Lochner v. New York .
According to the court, a state statute protecting employees of bakery
shops from having to work more than 10 hours per day and 60 hours per
week violated the “freedom of contract” protected by the 14th
Amendment’s due process clause. And Lochner was hardly an outlier. In all, between 1905 and 1930, the court invalidated some 200 statutes imposing economic regulation.
Concern about the court’s ideological motivations came to a head
during the New Deal period, when the court blocked some important New
Deal programs and threatened to invalidate many more. After his
overwhelming victory in 1936, President Franklin Roosevelt moved to
discipline the court by increasing its size from nine to 15 justices.
Congress ultimately rejected the proposal, but the court more or less
backed off from confrontation with a popular president. Roosevelt
remained in office long enough to appoint eight justices, and these
appointments inaugurated a period during which the court abstained from
interfering with economic regulation.
At the same time, the Roosevelt Court’s defense of civil
liberties was, at best, spotty. The court occasionally defended the
rights of unpopular speakers, but in moments when civil liberties were
at greatest risk, it refused to intervene. After the Japanese attack on
Pearl Harbor, the Roosevelt administration ordered the exclusion of
thousands of Japanese American citizens from their homes. The Supreme
Court held that the action was constitutionally permissible, even though
the exclusion was based solely on ethnicity and the excluded
individuals were given no opportunity to demonstrate their loyalty.
When the McCarthy panic hit the country in the postwar period,
the liberal justices again caved to public pressure. They acceded to the
criminal convictions and firings of scores of people because of their
political affiliations.
Rogue’s gallery: People protest the leaked draft of the Supreme Court’s abortion ruling in New York City. (Bryan R. Smith / AFP via Getty Images)
D ue to a series of historical accidents,
by the late 1950s power on the court had shifted to justices who viewed
themselves as legal reformers. During the brief heyday of the Warren
Court, the justices acted vigorously to dismantle racial apartheid in
the South, reform the criminal justice system, protect the free speech
rights of dissenters, require equality of population in voting
districts, and provide some constitutional protection for
poverty-stricken Americans. Even after Chief Justice Earl Warren had
retired and a conservative president had somewhat changed the complexion
of the court, it rendered pathbreaking decisions protecting
reproductive autonomy and attacking gender discrimination.
A half-century later, the Warren Court’s hold on the American
imagination remains strong. For many conservatives, the Warren Court
remains an exemplar of arrogant and lawless judicial overreach. Its more
important impact, though, has been on the attitude of many
progressives. Anyone looking at the entire sweep of the court’s history
would understand that the court has pretty consistently stood with the
most shortsighted and venal impulses in American society. Still, the
Warren Court interregnum supports the hope that if only the right
justices could somehow be appointed, the Supreme Court might yet be an
engine driving us toward the Preamble’s promise that we “establish
justice.” That hope, in turn, softens the criticism that many
progressives might otherwise direct toward the court.
In
evaluating this hope, it is important to emphasize two points about the
Warren Court. First, this judicial Camelot did not last very
long—effectively only 10 years. Second, for all its ambition, the Warren
Court’s actual accomplishments were limited and fragile. Dismantling
the Jim Crow system was an important achievement, but as many scholars
have pointed out, the court’s orders were widely ignored. Real change
did not come until Lyndon Johnson’s huge victory in the 1964 election
and the breaking of the Southern stranglehold on Congress.
Many other Warren Court reforms were similarly vexed. The court
addressed some of the worst manifestations of police violence and
lawlessness, but it also invented the concept of “qualified immunity”
for government officials who violated civil rights, thereby shielding
them from meaningful legal accountability. It was Chief Justice Warren
himself who wrote for the court in Terry v. Ohio to endorse the “stop and frisk” tactics that resulted in the systematic harassment of millions of Black men.
T he Supreme Court’s history is
important and often misunderstood, but the crucial question to answer is
how the court operates now and how it is likely to operate in the
immediate future. Unfortunately, whatever our experience during the
Warren Court era, the modern Supreme Court has returned to its
historical role as the defender of class privilege, racial hierarchy,
and misogyny. From the invalidation of campaign finance legislation, to
the hobbling of efforts to control climate change, to the recent threat
to abortion rights, the justices have allied themselves with the most
reactionary forces in American life.
So what is to be done? In the wake of the Senate’s unprecedented
refusal to consider President Obama’s nomination of Merrick Garland to
the court and the debacle surrounding the nomination of Brett Kavanaugh,
academics and political figures have proposed a variety of reforms. The
simplest to implement would be an expansion of the court’s size. The
Constitution does not require that there be only nine justices, and the
court’s size has varied throughout our history. A variant of this
proposal would allow the court’s size to fluctuate so as to allow each
administration a set number of appointments.
Other, more complex proposals would change the court’s
functioning in dramatic ways. For example, the political analyst Norman
Ornstein has proposed 18-year term limits for Supreme Court justices,
with a justice then relegated to service on the lower courts so as not
to run afoul of the constitutional guarantee of life tenure. Former
presidential candidate Pete Buttigieg has borrowed from a far-reaching
proposal advanced by law professors Daniel Epps and Ganesh Sitaraman.
Under this scheme, there would be 15 justices, with 10 equally divided
between the two parties and those 10 choosing the remaining five.
Here are some other proposals that the Supreme Court itself could adopt in the unlikely event that it were so inclined:
§ Ditch the robes and the “Your Honors.” Supreme Court
justices are not gods or priests; they are ordinary human beings. In a
country without an aristocracy, respect should never be based on
station. Instead, it must be earned and is always held provisionally.
The justices should act, and should be treated, like every other
citizen.
§ Require a seven-justice majority to invalidate a statute. Nothing
in the Constitution mandates majority voting by the justices; indeed,
by internal rule, the court has deviated from majority voting in
deciding whether to grant review over cases. More than 100 years ago,
the famed Harvard Law School professor James Bradley Thayer wrote that a
statute should be invalidated only when its unconstitutionality was “so
clear that it is not open to rational question.” A way to
institutionalize Thayer’s insight is to require at least a seven-justice
majority to invalidate a statute. If three justices think that the
statute is constitutional, it is hard to say that their judgment is
“irrational.” Why, then, should the judgment of six justices prevail
over the collective judgment of three of their colleagues and the
political branches?
§ Media coverage. For years, there has been argument
about whether the Supreme Court’s oral arguments should be broadcast
live on television. The court seems to be moving haltingly in this
direction, but this change does not go nearly far enough. Secrecy
surrounding the court’s operations has produced sloppiness and
misconduct that would never be tolerated if subjected to the
disinfectant of sunlight. The Supreme Court’s conferences should be
offered for live broadcast. I know, I know—how are the justices supposed
to be candid with each other if every word they speak is made public?
But, for goodness’ sake, these folks have life tenure. What is this
protection for, if not to allow them to say what they think without
worrying about retribution? If the justices in fact feel a little
pressure to think more carefully about what they say in conference, this
would be a good result rather than a bad one.
§ Draft opinions. The court should release draft
opinions for public comment before they are finalized. Why not?
Administrative agencies have functioned this way for years. Congress
does not usually keep important legislation secret until it becomes law,
and when it tries to do so, it is subject to harsh criticism. It is
terrifying that the court produces major legal documents in final form
without giving interested parties the opportunity to point out errors
and suggest revisions.
§ Reverse oral arguments. After the draft is made
public, the court should conduct reverse oral argument, whereby lawyers
for each side can question the justices about the opinion. Why is it
only the justices who get to ask the questions? A reverse oral argument,
with the advocates posing the hypotheticals and testing limits, might
uncover unintended consequences or flabby argumentation. Moreover,
forcing the justices to defend their opinions is bound to provide more
incentive to think carefully about what they are doing.
Will the Supreme Court adopt these reforms on its own? Don’t bet
on it. We face a classic chicken-and-egg problem: The justices have
power, and their power rests on mystification. We can hardly expect the
beneficiaries of this system to dismantle it voluntarily. It does not
follow, though, that debate about these proposals is pointless. The
necessary first step toward forcing the court to give up its power is to
delegitimize the court in the eyes of the public. And the first step in
accomplishing that objective is asking why, exactly, the justices are
so terrified of reforms that would end the pervasive mystification that
encases the court’s work. Even considering proposals like these
punctures the pomp, pretension, and grandiosity that supports the
court’s power.
More than that, thinking about these proposals reveals the sheer
ridiculousness of the court. Yes, we need to advance reasoned arguments
for why this institution is harming the country. But more than just
argument is required. The court should be the object of derision,
mockery, and contempt. We need to start making fun of the pomposity and
pretensions of the justices.
If we can bring ourselves to see through its pomposity and
pretensions, perhaps the Supreme Court will lose its power over us. Once
it does, the American people can begin the serious work of debating
what it would take to establish justice—work that cannot and should not
be delegated to an arrogant elite in robes.
Christopher Lee for The New York Times