Chosen as “the best column” by The Week magazine, Erwin Chemerinsky, dean of the UC-Berkley law school, wrote this in the Los Angeles Times (Jan. 22), about the U.S. Supreme Court (SCOTUS): “(E)veryone knows that Supreme Court decisions always have been and always will be a product of the ideology of the justices. Why pretend otherwise?”
Being a small-town columnist with no national implications to bear, I will go one step further: Let’s abolish the U.S. Supreme Court and replace it with a “national jury” of ordinary citizens randomly selected for a specific term. In this argument, I rely on the spirit of Lysander Spooner, a New England libertarian, born in Athol, whose book “Trial by Jury” is a classic defense of citizen power. As Spooner would’ve asked: Why do we need the Supreme Court?
In all things proper, SCOTUS is America’s final repository of justice and morality, where nine modern-day King Solomons dispense with their wisdom for humanity and good justice. They are seen, in priestly black robes, as the ultimate high priests of America’s constitutional wisdom. As the nine philosopher kings, they are considered the final oracle on our nation’s character and destiny. As the Supreme Court goes, so does our national aspiration for liberty and justice for all. The nine judges are even addressed as “Justices,” leaving no doubt about their judiciary wisdom and depth of human understanding.
In reality, however, nothing could be further from the truth: They are nothing but nine sets of biases fixed for life. Not only are they biased like everybody else, few of the Justices are above-average in intelligence and many are decidedly below average in character.
One of the most absurd examples of such defects comes from Chief Justice John Roberts under whose leadership (in the so-called “Citizens United decision” in 2010) the Court ruled it legal for corporations to donate as much as they wanted to, to the candidates of their choice, in effect making it easier for corporate America to buy elections. In a speech defending the decision, Chief Justice Roberts said the Supreme Court’s decision allowing unlimited money to be spent on elections in fact protected “(The) citizen’s ability to exercise ‘the most fundamental First Amendment activities.’” But, with the unlimited spending, he meant the rights of the rich, not the traditional meaning of “citizen,” “fundamental,” or “First Amendment.” He uses common words to defend uncommon money interest to influence American elections: According to Roberts, the U.S. means to protect the “fundamental” right of Free Speech for all Americans, by allowing all Americans to spend all the money they have for the candidates of their choice. As he explains it, the Court was now letting the First Amendment rights of the rich to destroy the First Amendment rights of the poor.
According to Roberts’ logic, you can spend your ten dollars as freely as a rich man his $10 million dollars. Predictably, 10 years after this ruling (2020), ABC News noted the “record cash flooding U.S. elections.” Is Roberts, representing the Court, disingenuously evil or just un-ironically stupid?
Now it’s June, 2022. As if to outdo itself, the Court upheld the people’s right to carry concealed guns in New York, and overturned Roe v. Wade to make abortion illegal in America, back to back. In one ruling, the Court, by allowing hidden guns, made American lives very cheap and, in the very next case, the Court, rendering abortion illegal, made American lives very dear.
With one hand, they gladly kill the living among us and with the other, they sanctify the not-yet-living-with-us. As a rule, when these nine Justices give their yes’s and no’s, their decisions are no more just than any other such decisions made by average Americans. SCOTUS begins and ends with biases and, often, whims. In fact, of the three branches of our checks-and-balances system — Congress, White House, Supreme Court — only the last one stands outside the purview of citizen control, with catastrophic consequences. Their tenure set to last a lifetime, we are stuck with their biases and atavism forever.
In saying their opinions, the nine Justices are no more morally or legally guided than average Americans who would make similar decisions. The difference would be unnoticeable. Equally unnoticeable is how the nation’s juries, the workhorse of American justice, do their jobs every day. Today, 99.97% of jury decisions are considered “accurate,” even though the American jury system — the crown jewel of our egalitarian self-governance in a free society, as argued by Spooner — is entirely made up of ordinary, average citizens.
We demonstrate our faith in the jury system as we accept its decisions as absolute and final. We even elect our highest office-holder — the president of the U.S. — by a system essentially identical to the jury system. The jury of citizens — the electors — renders its decision and the nation accepts its verdict, even when the choice is as surprising as Donald Trump. The jury speaks and we listen.
The myth of the U.S. Supreme Court as made up of nine wise men and women can now be dispensed with: In our age of accountability, no institution should exist without citizen accountability. Whether wise or foolish, their decisions are no better or no worse than those of the normal average jury — in this case, the “national jury” — to be randomly selected from the citizens to provide judgments, surely no worse than those of Thomases, Kavanaughs or Barretts.
Why should we pretend judicial wisdom in the latter’s rulings when there is none, and the presence of humanity in their deliberation where there is little? At least the duration of their opinions and biases should not condemn the nation for life.
Jon Huer, columnist for the Recorder and retired professor of criminology and philosophy, lives in Greenfield.