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Supreme Court: The Minority Rules

Updated: Jul 1, 2022

Supreme Court
Front row, left to right: Associate Justice Samuel A. Alito, Jr., Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Back row, left to right: Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch, and Associate Justice Amy Coney Barrett. Credit: Fred Schilling, Collection of the Supreme Court of the United States

There was an interesting article in today’s New York Times that compares our Supreme Court’s term limits and power with other countries. In most countries, their highest courts in the land have far less power than ours has in this one.

Five current Justices were appointed by presidents who lost the popular vote: John Roberts & Sam Alito were appointed by George W. Bush who lost the popular vote to Al Gore in 2000. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were appointed by Donald Trump, who lost the popular vote twice and the electoral college once, by a landslide.

Even though a vast majority of citizens disagree with their judicial philosophies and recent opinions on abortion, gun control, gerrymandering, and voting rights, there is little we can do. In most countries, their highest court has term limits and rulings, and laws are subject to periodic review. Here, while Democrats have a majority in both Houses, the presidency, and a large voting majority, our sharply divided Congress and gerrymandering prevent any meaningful legislative change once the high court rules.

Unlike “those” countries, in this country, Supreme Court Justices serve for life or until they decide to retire, even though they were appointed by presidents who received lewer votes than their opponents.

For you so-called “single issue voters,” I have long advised that the potential appointment of Supreme Court Justices is the most important “single issue” in American politics. Had Democrats voted for Gore in 2000 and Clinton in 2016, in the large numbers they did for Presidents Obama in 2008 and Biden in 2020, Democrats might be enjoying an 8-1 or 7-2 majority on the United States Supreme Court.

Take a moment—allow that fact to sink in. Can you imagine? 8-1! Only Clarence Thomas was appointed by a president, George H.W. Bush, who won the popular vote. And that president was defeated after serving only one term in office.

Gridlock in Congress, says The Times article author, German Lopez, creates even more power for these minority appointed Justices. Perhaps the framers meant it that way. Lopez points out that changes sought by Democrats requires legislation, a difficult task in a sharply divided legislature. Conservatives are content to cede their agenda to an activist Supreme Court to get the results they desire.

What does all this mean for the country? Unless Democrats get out and vote in record numbers in 2022 and 2024, change the legislative landscape, and create a ‘super’ majority for more liberal causes like reproductive rights, climate change, voting rights, minority rights, economic justice, and gun control, there is little chance for any of this to come to pass.

These are the stakes ladies and gentlemen. And shame on us for letting this happen.

Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the headlines, realistic fiction that speak truth to power and champion the rights of citizens in our justice system. These novels are dedicated to the social justice movement. They educate, spark discussion and inspire readers to action. One of these novels, Betrayal High, was written in response to school shootings. For more information, please visit Mark also hosts the Justice Counts podcast with Lean to the Left editor & publisher Bob Gatty, presenting bi-weekly interviews focused on social justice.

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