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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.

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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.

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