In 1832, President Andrew Jackson condemned a Supreme Court decision in words that are famous in judicial history, but today almost unthinkable in their disrespect for the highest court in the land: “Justice Marshall has made his decision; now let him enforce it.”
Jackson, a violent slave owner (and idol of President Trump) is best known for the ethnic cleansing of 120,000 Native Americans who were forcibly removed from the Southeastern United States in the 1830s.
When the state of Georgia tried to seize millions of acres of Cherokee land, the Supreme Court affirmed the rights of the Cherokee. But Jackson ignored the decision, and Native Americans eventually died by the thousands on the “Trail of Tears.”
Nowadays, while people on the left and right both criticize the Supreme Court, the notion of simply ignoring a ruling is almost unimaginable. The court often has the last word on deeply political issues, but it’s generally seen as judicial, not “political.” That’s the key to its legitimacy.
But for the Supreme Court to have legitimacy, we must know the fix is not in.
The judges must have been fairly selected, and political leaders with different views must all have a fair opportunity to pick justices. For the court to be legitimate, it must be touched by democratic influence: justices must be selected by democratically elected presidents.
In a slow-moving and rough way, then, the presidential choices can reflect the moods of their times. And, optimistically viewed, the people who call themselves “justices” may be seen as a kind of composite of the priorities and values of our nation over a period of decades.
In this century, however, any claim the Supreme Court’s judges were fairly selected is fragile.
Four of the current nine justices were selected by Presidents George W. Bush and Donald Trump. Each lost the popular vote in their inaugural term, and each was put in office against the will of the majority of Americans. Meanwhile the majority-elected president, Barack Obama, was prevented from appointing a justice on what is now admitted to have been a phony excuse.
What have these justices of dubious legitimacy done with their power? They have repeatedly sought to tilt the electoral system toward Republicans.
In 2008, they approved voter ID requirements whose only function was to hinder voting rights. In 2013, they eviscerated the Voting Rights Act of 1965, unleashing an avalanche of new state laws to disenfranchise minority, elderly, and young voters. This April, they disallowed the votes of thousands of Wisconsinites who tried to vote by mail during the pandemic.
You could argue the Court was no bulwark even before. After all, George W. Bush was essentially appointed by a right-wing majority of the Supreme Court when they halted the Florida vote count in 2000. But it could get far, far worse.
If Trump is permitted to appoint yet another justice, that will make five — a majority of the Court — selected by men who became president despite being opposed by most voters. Any contention that a majority of the Court reflects the values of most Americans will be eradicated, and it will be time to end any pretense that the Supreme Court is a legitimate judicial institution.
There could no worse time for America to find itself without a judicial bulwark. The president wages war on American constitutional values, encourages violence, and refuses to accept that he should leave office if he loses the election.
We cannot afford a Supreme Court that has abandoned its constitutional duties to become a headquarters for Republican political partisans in black robes.
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