Supreme Court powers must be curbed, say US Greens

“US Greens support increasing the number of justices as a way to dilute the current misbehavior of the court.” Following the death of Supreme Court Justice Ruth Bader-Ginsburg on 18 September, co-founder of the Green Party of New York Mark Dunlea explains how the US Greens want democracy to move forward.  

Inside the Supreme Court, USA
Mark Dunlea

While the Green Party believes that the Democrats in the US Senate should – but probably won’t – use all their procedural powers to delay the replacement of the late Supreme Court Justice Ruth Bader Ginsburg until the next President has been installed, more fundamental changes are needed to reign in the powers of the unaccountable, unelected “super-legislative council of lifers.”

The issue of Supreme Court Justice nominations is routinely exploited by the Democrats to pressure liberal voters to support their presidential candidates, particularly on the issue of abortion, despite their consistent shortcomings on progressives causes. What the Democrats don’t tell people is that they have allowed the Court to evolve into a far more powerful and reactionary body than the founders ever imagined.

The Greens want the Democrats to curb the Court’s powers if they sweep the November elections, something that Obama didn’t do 12 years ago when the Democrats controlled the White House and both houses of Congress. Even if the Democrats select the next Justice, the conservatives would still have a 5-4 majority.

The constitution gives the Supreme Court original jurisdiction over a limited number of matters, mainly relating to suits between states. Its appellate powers are subject to the “exception and regulations” enacted by Congress. The Greens would remove their power to overturn federal legislation, or at a minimum require a super majority. Congress also has the power to legislate to reverse court decisions such as restoring the pre-clearance provision in the Voting Rights Act and codify Roe v. Wade on abortion.

Many Greens advocate term limits on the Justices rather than allowing them to continue to serve for life. They would support increasing the number of justices as a way to dilute the current misbehavior of the court.

The Supreme Court has always been an undemocratic institution, primarily protecting the property rights and powers of the rich and powerful. The Court has repeatedly expanded corporate power, ruling to allow them to buy elections as a form of free speech and giving them the rights but not the responsibilities of individuals. 

Whatever legitimacy the Court had as a “council of senior constitutional experts” has been destroyed by its increasing partisanship, including installing Bush in the White House in 2000. Both major parties now just focus on packing the court rather than selecting based on judicial excellence.

While Greens applaud the role of Ginsburg as a feminist icon who struck down various legal suppression of women, they noted that much of her groundbreaking success were from her role as an activist, not as a Justice. 

While Ginsburg was a generally reliable vote in upholding several critical environmental laws, such as the power of the EPA to regulate carbon emissions, she surprisingly ruled in favor of the Atlantic Coast pipeline. She has ruled against indigenous rights and in support of fast-track deportation. She voted to allow the government to threaten the withdrawal of funding to punish universities that ban discriminatory job recruitment by the military and against paying overtime to Amazon warehouse workers. She also publicly dissed Colin Kaepernick’s refusal to stand for the national anthem at NFL games to protest police violence as “dumb and disrespectful.”

The recent Democrat appointees, including Ginsberg, have been neoliberals on economics who agree with the conservative Justices on corporate power. Like the rest of the body politic, the court has shifted far to the right, with the liberal bloc centrists based on historical standards. The present liberals would have been on the right in Earl Warren’s Supreme Court and the court is the most business-friendly in a century.

Mark Dunlea is a co-founder of the Green Party of New York