When members of the Supreme Court attempt to diminish what they describe as their “perception problem,” it may just be because the public’s perception of the court is accurate. Edward Rumely, editor-in-chief and publisher of, the New York Evening Mail, coined the phrase “court-packing plan” way back when Franklin D. Roosevelt wanted to add more justices to the Court. Today, those who have a tenuous relationship with words still use the term “packing” to decry any effort to increase the number of seats on the High Court.
Those who hold a firm position, or even no position, on the abortion debate must acknowledge that cases heard in the final days of 2021 were brought precisely because the makeup of the court had changed. Much of the argument in December centered on the question of predictability and that is the question that should have been, first and foremost, before the Presidential Commission on the Courts. Of course any commission that is headed by co-chairs that are vested in traditional law would predictably find for maintaining the status quo.
It’s well past time to reform our entire process of jurisprudence. There is a statement inscribed over the doors of the United States Supreme Court building. It reads: “Equal Justice Under Law.” That has never been true. And, at this juncture we must ask ourselves: “Is it even an aspirational statement for those currently occupying the judiciary?” Nibbling around the edges, in incrementalist fashion, will not produce the change required to reform our system of jurisprudence. When one president can abruptly shift the idealogical balance of the court in just one term, we have a big, big problem.
As state legislatures are producing bills, that actively corrode the democracy underpinnings of our constitutional republic, because they perceive a compatible ideological bias on the high court, it has become abundantly clear that the entire process has become corrupted. SCOTUS Justices, occupying positions of honor and trust, have no ethics code. Their nominations, confirmations, and accommodations are secured through dark money. If that’s not conducive to corruption what is? The stench described by Justice Sotomayor has, at this juncture, become just too hard to ignore.
We need to reform the judicial monastery in a big way. And we should begin at the very top. When a judicial panel set to hear any given case becomes randomized, by the drawing of lots, legislatures will be much less able to game the system as they did in 2021. This randomization should start with a United States Supreme Court composed of twenty one justices. When seven justices are selected at random to hear each individual case, only after certiorari is granted, we can then begin to trust the court again.
At the trial court level we must also realize that jury nullification is ill defined. It is, in actuality, what happens when judges selectively amplify, filter, and contextualize everything a jury gets to hear. Are these not the tools of the modern day deceiver? Witnesses are sworn “to tell the truth, the whole truth, and nothing but the truth.” Then we often watch helplessly as integrity challenged officers of the court routinely extract half truths so they can cobble together any narrative that might suit them.
The doctrine of equal justice under law has been a fantasy throughout the entire history of the United States. The country’s original sin of slavery was codified in the Three-fifths Compromise that insured a black man or woman would never be counted as more than three-fifths of a person. Since that time the jelly-bean jar, the shadowy purging of voter roles, the politically tainted district maps, the voter intimidation tactics, the removal of mailboxes and polling sites from minority neighborhoods, the legislative sophistries, and the deceptive practices of those occupying positions of honor and trust have surreptitiously kept the nation’s corrupt compromise alive.
When the Preamble of the United States Constitution is effectively set-aside by the courts; and when the various oaths of office are widely regarded as somehow having little value by those sworn to uphold them, the legitimacy of the executive, legislative, and judicial branches of government are severely undermined. The proximate cause for such a rotting foundation is directly attributable to those occupying high office who have a reckless indifference to the truth. In the context of an authentic democratic republic, deceiving We the People in elections and judicial confirmations should carry penalties far more severe than even those typically imposed for lying to law enforcement or for perjuring oneself, while testifying in court or before congress.
Being truthful with the general public is an indication of rare statesmanlike qualities. It insures the consent of the governed is one that is fully informed. The dark money, the closed door hearings, the shadow docket, and the unsigned letters are all indications of a deep seated cowardice that is antithetical to informed consent. Together, they constitute the best evidence of a ruling class composed of individuals that are morally and intellectually defective thus prompting their pathological engagement in subterfuge.
We the People, in order to form a more perfect union, must demand integrity.