The judicial branch in crisis

One of our three branches of government is at risk of self-destructing, and in spite of how things sometimes seem, we can't afford to lose it.

The recent diktat by the Alabama supreme court that frozen embryos are children -- persons with legal rights -- is the latest example of arbitrary and sweeping court attacks on the actual rights of actual people, but of course far from the first.  The 2022 Dobbs ruling was a political earthquake in which a politically-captured federal Supreme Court, acting purely for blatant ideological reasons, swept away a fundamental right which had been entrenched for half a century.  Indeed, the total unmooring of legal rulings from reality or common sense dates back to the Supreme Court's 1918 Arver v United States ruling, in which it declared that the military draft did not violate the Thirteenth Amendment's prohibition of involuntary servitude.  It's impossible to imagine any action which would be a more exact fit for the phrase "involuntary servitude" than military conscription (nor can it be plausibly claimed that "involuntary servitude" was meant as a mere synonym for slavery, since the Amendment's wording "Neither slavery nor involuntary servitude" makes it clear that two distinct things are being prohibited), yet the highest court in the US declared the opposite.  A ruling that up was down or that black was white would have been infinitely less absurd.  Since Arver it has been impossible to claim that court rulings are in any way constrained by reality or logic.

There may well be more to come.  The Supreme Court has yet to rule on whether a man who flagrantly incited a violent insurrection against the government can be a candidate for president in obvious violation of Section 3 of the Fourteenth Amendment, and most observers seem to expect that it will rule him to be eligible.  Some of our country's most powerful oligarchs and corporations are trying to get the courts to declare the NLRB unconstitutional, a frontal attack on what little power American workers have to at all mitigate their exploitation by entrenched parasitic wealth.  How that ruling, if there ever is one, will go, is impossible to predict.

The reason this is such a problem is that the courts are de facto exempt from the checks and balances that are supposed to impose limits on government authority and absurdities.  Congress and the executive have various ways of restraining each other's power, and the courts can overrule either, but nothing restrains judges except higher judges.  Having ruled that embryos are persons, in theory some court could rule that ants are persons and that you could be charged with manslaughter for stepping on one, and everybody would simply be stuck with it.  Constitutionally, Congress can change the size of the Supreme Court and modify its jurisdiction, and even create new courts with new functions, but it has not exercised this power in nearly two centuries, and doing so today would be perceived as a radical upsetting of the established order, even though it seems the only way of reining in the current rampage of arbitrary politicized rulings.

And the Supreme Court needs such restraint now more than ever, since it is now acting as just another political branch of the government.  Its judges almost always rule in accordance with their own ideological and partisan leanings, just as legislators vote on that basis.  A big part of the reason for voting for your own party's presidential candidate over his opponent is the hope of getting a Supreme Court appointment or two which will align ideologically with your preferred party.  It's all politics.  Anybody who still believes the Supreme Court is above politics, merely "calling balls and strikes" in strict accordance with the wording of the Constitution, is just a sucker.

But if the courts do not face checks and balances, they also have no enforcement mechanism.  They rely on institutionalized respect and deference from the rest of society, which is rapidly being eroded by their own politicization.  Open defiance is spreading.  Texas recently announced its intention to keep putting razor wire along the Mexican border despite a Supreme Court ruling that empowered the federal government to remove it.  Two weeks ago the Hawaii supreme court simply rejected a federal Supreme Court gun-rights ruling it didn't like.  This week Utah's legislature passed a "sovereignty act" allowing state authorities to overrule or ignore federal rules and decisions which they decide are "overreach".  "But is it constitutional?" CNN asks.  Of course not, but that's the point.  The state legislature is claiming the right to disregard such concerns.

While some defiance of arbitrary authority is healthy, in the long run this is potentially dangerous.  Although the crazy stuff coming from the top gets the headlines, the courts more broadly have been a bulwark of sanity at a time when the system sorely needs it.  Judges, including many Republican appointees, held the line against Trump's frivolous stolen-election lawsuits and similar more recent actions by various cranks in Arizona.  The courts have held Trump, Giuliani, and others accountable for defamation of the powerless in their own pursuit of power.  The courts have sent hundreds of January 6 insurrectionists to prison.  Imagine what would have happened if these decisions had been in the hands of the current Congress instead.

The judicial branch is too important to let the current Supreme Court go on trashing its authority.  If Biden is re-elected and Democrats win the House (both likely) and manage to hold the Senate (unlikely but possible), then Supreme Court reform needs to be on their agenda -- perceived radical upsetting of the established order or not.