Skip to content
Search

Latest Stories

Top Stories

New year, time for new thinking about the undemocratic nature of the high court

Amy Coney Barrett

The newest justice, Amy Coneey Barrett, joined a Supreme Court that is inherently undemocratic, writes Scofield.

Tasos Katopodis/Getty Images

Scofield has a doctorate in comparative constitutional law and teaches government at Blinn College in Texas.


Asked to name a famous Supreme Court case, many Americans would probably initially think of three that are the best known for expanding the constitutional rights of individuals: Brown v. Board of Education, which said children have a right to attend desegregated schools in 1954; Roe v. Wade, which said women have a right to have abortions in 1973; and Obergefell v. Hodges, which said gays and lesbians have a right to get married in 2015.

These landmark decisions helped to create a political mythology of the Supreme Court as an institution that has always protected the rights of Americans. However, the politicization of the courts magnified by President Trump and Senate Republicans has ironically highlighted a truth often ignored: The nation's highest court is inherently undemocratic.

Since the election, Trump has made it clear he believes the court and the three justices he appointed — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — should deliver an electoral victory for him. This is despite the fact that Joe Biden won with 306 electoral votes and by a margin of more than 7 million votes.

He and his allies were able to get a pair of challenges to the election considered by the court this month. It took only a few hours before tossing a suit seeking to reverse the outcome in Pennsylvania. It took about a day before rejecting a bid by Texas to overturn the results from four states Biden won.

"The Supreme Court really let us down. No Wisdom, No Courage!," Trump tweeted after that second, decisive setback for him.

The rhetoric regarding the elections is a culmination of Trump and Senate Republicans' longstanding efforts to remake the courts. Majority Leader Mitch McConnell broke important senatorial norms by refusing to consider President Barack Obama's nominee, Merrick Garland, in 2016, and by rushing the confirmation of Barrett just weeks before this year's election.

When Biden takes office in January, he will face a 6-3 conservative majority on the court that threatens his ability to carry out popular initiatives, from reforming health care to taking meaningful action on climate change.

Not only will the court have the power to block the policy agenda of a popularly elected president, but the very process of choosing justices has become widely undemocratic. Republicans have won the popular vote only once since 1988, but they have appointed six out of the last 10 justices. The senators who voted against Barrett represent 13.5 million more people than do the senators who voted for her.

In light of the Trump administration's politicization of the courts, scholars and public commentators have presented several proposals for reform. The first step, however, may be convincing the public of the undemocratic nature and history of the courts.

While trust in American political institutions has long been on the decline, trust in the Supreme Court remains relatively high. A Gallup poll this year found 40 percent of Americans have a "great deal/quite a lot" of confidence in the high court and as many have at least some confidence — but just 17 percent said they have "very little."

By comparison, just 13 percent said they have ample confidence in Congress while 41 percent say they don't have much at all.

Unfortunately, despite widespread faith in the Supreme Court, the institution has not always stood on the side of expanding individual rights and democracy. Brown v. Board overturned Plessy v. Ferguson, which found segregation constitutional six decades before. Korematsu v. United States upheld the internment of Japanese Americans during World War II. Buck v. Bell, a 1927 ruling that's never been technically overturned, upheld forced sterilization of those considered "feebleminded."

For its part, the court under Chief Justice John Roberts Court has seriously weakened democratic rights. Shelby County v. Holder gutted the Voting Rights Act and ushered in a new era of voter suppression since 2013. Citizens United v. FEC has made it difficult to effectively regulate campaign financing for the past decade. And last year's Rucho v. Common Cause said federal courts had no business placing limits on partisan gerrymandering.

It is worth noting how our system is rare among Western democracies in giving the top court the power to decide what the law is.

Countries including Germany and Portugal have separate constitutional courts — they do not have the same appellate function as our Supreme Court — to protect economic and social rights. In Belgium and Switzerland, courts are constitutionally prohibited from engaging in judicial review. In the Netherlands and Britain, the parliaments have supremacy over the courts. In Canada, the top court can declare that a law violates the national Charter of Rights and Freedoms, but Parliament has the option of passing legislation over the court's objections.

All those systems recognize a conflict at the core of any democratic government: Courts have the ability to protect individual rights, but they are fundamentally undemocratic.

As one of her first acts after becoming the newest Supreme Court justice, Barrett provided the deciding vote in a case that ultimately struck down Gov. Andrew Cuomo's restrictions during a surging coronavirus outbreak on in-person religious gatherings in New York. The case was notable, because five unelected members of the judiciary ultimately interfered with the pandemic response of a democratically elected executive.

In highlighting the troubling history of the Supreme Court, Democrats can put public pressure on judges to respect the will of democratic majorities in the short-term and start building the case for long-term structural changes to the court.

Ultimately, Democrats should make the argument that in a democracy the will of the majority should not be so wholly subjected to nine unelected officials.

Read More

Iran Warns ‘The Battle Begins’—What Role Will Trump Have the U.S. Play?

artistic animated picture of Donald Trump

Iran Warns ‘The Battle Begins’—What Role Will Trump Have the U.S. Play?

The sixth day of escalating tensions between Iran and Israel saw a stark warning from Iran’s Supreme Leader Ayatollah Ali Khamenei, who declared on social media: “The battle begins.” This came shortly after President Donald Trump referred to Khamenei as an “easy target” and stated that America’s “patience is wearing thin,” demanding Iran’s “unconditional surrender.”

The president cut short his trip at the Group of Seven summit in Canada, citing the ongoing conflict between Israel and Iran.

Keep ReadingShow less
Beyond the Game: Pioneering Women’s Healthcare in Collegiate Athletics

Olympic Trials

Beyond the Game: Pioneering Women’s Healthcare in Collegiate Athletics

For decades, collegiate sports have served as a powerful platform for achievement, community, and identity. But amid the victories and records, a quieter struggle persists—one rooted in systemic neglect of women's unique health needs. While gender disparities have garnered increasing attention across society, the gap in sports medicine remains pronounced. Less than 2%of federally allocated research funding targets reproductive health and related issues, leaving many female athletes without the tailored support necessary to thrive.

Recognizing this gap, the University of Washington has begun pioneering initiatives to address women’s healthcare needs in collegiate athletics, emphasizing a holistic, research-informed approach. These efforts aim not only to improve individual athlete outcomes but also to set a precedent for other institutions seeking to foster gender equity in sports medicine.

Keep ReadingShow less
Navigating the Medical Maze: It’s Hard Enough With Full Health Coverage

A doctor treating a patient in a hospital.

Getty Images, Bevan Goldswain

Navigating the Medical Maze: It’s Hard Enough With Full Health Coverage

The woman on the phone from the Mayo Clinic was growing exasperated as she ran through how to sweep up my medical records.

“So, you got the CT scan in Storm Lake? And the hormone therapy in Spencer? And the MRI at Mercy and biopsy someplace else in Sioux City? And a PET scan at June Nylen Cancer Center in Sioux City? And what at Iowa City? And California? Where?”

Keep ReadingShow less
Solutions to an Illinois City's Flooding Issue

Flooded basement

(Credit Micah Caldwell)

Solutions to an Illinois City's Flooding Issue

Following months of research, canvassing, and listening to community needs, journalists, including Britton Struthers-Lugo, produced solutions-based stories about the challenges faced by the Berwyn, Illinois, community.

In Part 1, "Illinois Residents Grapple With Urban Flooding," Struthers-Lugo examined the issue of urban flooding, a growing concern for residents and infrastructure in Berwyn.

Keep ReadingShow less