Apr 4, 2024 5 min read

By Kent James

With the minor exception of the Supreme Court led by Chief Justice Earl Warren in the 1950s and 1960s, the Court has historically been a conservative institution.

Since the Supreme Court ignored its states’ rights ideology to overrule the Florida Supreme Court and stop the recount in Florida during the 2000 presidential election, effectively giving the presidency to George W. Bush, it has become more nakedly partisan, which is the result of decades of Republican efforts to stack it with more reliably partisan justices.

While Chief Justice John Roberts sought to weaken the partisan inclinations of the Court by joining with the liberals to prevent the Affordable Care Act from being overturned in 2012, the Court’s conservatives have aggressively enacted their agenda since then. This is best exemplified by the overturning of Roe vs. Wade two years ago. This happened after most of the conservative justices had claimed during their confirmation hearings that Roe vs. Wade was settled law, and therefore would not change.

Partisanship on the Supreme Court undermines its legitimacy, however, and its legitimacy is the source of its authority.

President Andrew Jackson made that clear in 1832 when he ignored the Supreme Court’s ruling protecting the rights of Native Americans in a case from Georgia, pointing out the inherent weakness of the judicial branch: “(Chief Justice) John Marshall has made his decision; now let him enforce it.” The current Court has lost much of its legitimacy because instead of standing above the increasingly polarized political environment, it has weighed in wherever possible on the Republican side.

Stare decisis, the doctrine cited by the conservative justices in their promises to respect the precedent set by Roe vs. Wade, is the most conservative of doctrines because it limits the Court from overturning settled law. But the conservative majority has overcome their philosophical reluctance to change if it advances a conservative agenda. Since the days of the Warren Court, conservatives have accused liberals on the Court of “legislating from the bench,” but that’s exactly what the conservatives did when they overturned Roe vs. Wade. Instead of letting the political process – which already overvalues conservative voters – determine how to deal with abortion, by either passing legislation or a constitutional amendment to abolish or restrict abortion rights, the current Supreme Court changed its ruling not because the facts or law had changed, but because the personnel on the Court had changed.

The public was not fooled. According to the Pew Research Center, public approval of the Supreme Court fell from 70% approval before the decision, to 44% after.

More recently, the Court has again shown its partisan bias by acting quickly when speed benefits former President Donald Trump, but dragging its feet when it doesn’t.

When the Colorado Supreme Court agreed to remove Trump from the state’s primary ballot because the 14th Amendment prohibits “officers of the United States” who had sworn an oath to protect the Constitution and then engaged in rebellion against it from running for office, the U.S. Supreme Court wasted no time in overruling the state court and putting Trump back on the ballot.

Another instance where the Supreme Court has lent a hand to Republicans is a case from South Carolina, where a panel of three federal judges found members of the GOP had illegally drawn an electoral map that unfairly weakened the political power of Black voters. South Carolina appealed the decision to the Supreme Court, which heard the case in October, but still hasn’t issued a decision. The Court’s failure to decide allows South Carolina to use a map that favors Republicans, even though a federal court found the map to be illegal.

In his criminal trials, rather than demanding a speedy trial to prove he was wrongly accused, Trump’s strategy has been to delay, because until he’s convicted, Trump can claim he’s being unfairly targeted by his political opponents. And if Trump is elected in November, he will probably be able to avoid any trials.

His latest delay tactic is to claim immunity, arguing that all presidents need immunity in order to function. That’s ridiculous; the only previous president who needed immunity was Richard Nixon, and it’s pretty hard to argue that the country would’ve been better off if Nixon had been allowed to commit his crimes in the Watergate scandal with impunity.

Special Prosecutor Jack Smith, who is prosecuting the cases surrounding Trump taking classified documents and the January 6 insurrection, asked the Supreme Court for a ruling on the former president’s immunity claims in December to avoid the delay that Trump so clearly wants. The Supreme Court ignored that request, instead waiting until almost March to decide it would hear the case…next Tuesday, the very last day of oral arguments for the session.

The Court needs to treat these cases with the urgency they deserve. Justice Samuel Alito has already recognized that the defendants are not the only ones who deserve a speedy trial; writing for a unanimous Supreme Court, he argued that the Speedy Trial Act “was designed not just to benefit defendants but also to serve the public interest.”

Even Nixon recognized that “people have got to know whether or not their president is a crook.” It is awkward to put a presidential candidate on trial, but it was Trump who put us in this spot by his actions and his efforts to delay the trials. While he has not yet been proven guilty, he was indicted by grand juries made up of regular citizens, not his political enemies.

As the recent bond reduction in the fraud case in New York demonstrates, the legal system has bent over backwards to accommodate Trump. While it is good to be sure Trump is being prosecuted, not persecuted, if the system bends too far to accommodate him, it will cease being just.

Kent James is a member of East Washington Borough Council.