[The right-wing supermajority on the Court is the result of a
movement determined to seize power at any cost. Its time to critically
assess and reconfigure the Court’s role in our society. Our
democracy depends on it.]
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THE SUPREME COURT’S LEGITIMACY CRISIS  
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Molly Coleman and Tristin Brown
June 16, 2022
Teen Vogue
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_ The right-wing supermajority on the Court is the result of a
movement determined to seize power at any cost. It's time to
critically assess and reconfigure the Court’s role in our society.
Our democracy depends on it. _

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In a one-paragraph decision
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in January, the Supreme Court ruled that former president Donald Trump
was required to turn over documents to the House committee
investigating the January 6 insurrection. It was an unsurprising
decision, described by commentators
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“entirely consistent with existing law.” In a Supreme Court where
a third of the members were appointed by Trump, only Clarence Thomas
noted his dissent. Thomas would have permitted the Trump White House
to shield its records from congressional scrutiny.

Initially, Thomas’s dissent was notable but not shocking. Thomas is
a staunch conservative, frequently willing to go further to advance
the right-wing agenda than many or all of his colleagues on the bench.
But over the last several months, new reporting has suggested that
Thomas’s dissent may not have stemmed strictly from a different
interpretation of the relevant law.

Reporting has revealed that Thomas’s wife, far-right activist Ginni
Thomas
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was deeply involved in efforts to overturn the 2020 election results,
going so far as to pressure at least lawmakers
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Arizona to overturn the outcome in their state. Legal ethics experts
from across the political spectrum agree that Thomas had no business
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in a case so directly tied to his wife’s political activity — but
he did so anyway.

As egregious as Justice Thomas’s refusal to recuse is, it is merely
the latest display of the current Supreme Court’s illegitimacy. The
creation of a 6-3 radically conservative supermajority on the Court is
the result of a conservative legal movement determined to seize power
at any cost
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In a 2016 presidential debate, Trump plainly stated that his Supreme
Court nominees would vote to overturn _Roe v. Wade_
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He said, “If we put another two or perhaps three justices on, that
is really what will happen. That will happen automatically in my
opinion. Because I am putting pro-life justices on the court.” Six
years later we are on the precipice of that plan becoming a reality.

Each of those “two or perhaps three justices” appears likely to
help overturn _Roe_, according to a majority draft opinion leaked
last month. And each of those three justices occupies a seat on the
bench because of bad-faith practices by conservatives.

After the death of Justice Antonin Scalia, Senate Republicans began an
unprecedented blockade of Merrick Garland, then president Barack
Obama’s nominee to the Supreme Court. The Republican majority
refused to fulfill their duty to hold hearings and vote on a judicial
nominee. Garland’s nomination was stalled
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a stunning 293 days before expiring on January 3, 2017. Trump assumed
office shortly after and within weeks nominated Neil Gorsuch
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be the next Supreme Court justice.

A little over a year later, Justice Anthony Kennedy announced his
retirement from the bench. Trump nominated Brett Kavanaugh
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Kennedy’s reportedly hand-selected
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Before Kavanaugh was confirmed, Christine Blasey Ford came forward
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that he had sexually assaulted her when the two were in high
school. Two additional women
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came forward with sexual misconduct allegations. Following
Kavanaugh’s denials (and following what Blasey Ford’s lawyers
called a “sham” FBI investigation
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he was confirmed to a lifetime seat on the Supreme Court.

Only two years later, Trump had the opportunity to appoint yet another
justice. Just eight days after the passing of Justice Ruth Bader
Ginsburg, Trump nominated his final Supreme Court pick
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Amy Coney Barrett, despite the fact that the 2020 presidential
election was just 38 days away. The irony of Senate Republicans
blocking Garland's nomination for nearly a year only to turn around
and swiftly force now Justice Barrett’s confirmation through was
rich, to say the least.

Failures to recuse in cases of conflicts of interest. Holding seats
open in the case of Democratic nominees and rushing to fill seats in
the case of Republican nominees. Allegations of sexual misconduct and
“sham investigation" of said claims. Taken together, it’s no
wonder the Supreme Court is facing a crisis of legitimacy.

Six conservative lawyers in robes are poised to massively upend life
in the United States. It appears all but certain that the Supreme
Court will end constitutional protections for abortion access within
the month. If that happens, the Center for Reproductive Rights
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that “abortion rights would be protected in less than half of the
U.S. states and none of the U.S. territories,” which
would disproportionately harm
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people and Black and brown people.

And abortion is just the beginning
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Legal experts warn that the legality of Plan B and various forms of
birth control may soon be in jeopardy
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And, as President Joe Biden has said, from there it’s just a short
jump to ending constitutional protections for same-sex marriage
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Decisions about intimate relationships and reproduction aren’t the
only things on the Supreme Court’s agenda. The gun-friendly
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majority may be on track to expand the public’s ability to access
and carry firearms. Some advocates say
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the Court is gearing up for “a relentless effort…to transform gun
regulation around the United States,” preparing to dramatically
limit state and local government's ability to pass laws regulating the
ability to carry firearms.

In _West Virginia v. EPA_, in which a decision is also expected this
month, the conservative justices appear likely to severely limit the
federal government’s ability to respond to climate change
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Environmental law experts warn that the far-right Supreme Court is
poised to say that federal agencies like the Environmental Protection
Agency no longer have the discretion to enact rules and regulations
aimed at addressing the biggest issue
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our time.

Unelected, unaccountable judges are on the verge of limiting our
ability to fight climate change while forcing people to birth unwanted
babies in a world with almost unlimited access to deadly weapons.
It’s perhaps no wonder that a majority of Americans disapprove of
the Supreme Court
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We are in a crisis moment — and it’s only getting worse. We must
treat this Court as the emergency that it is. And that starts
with structurally reforming
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Court. The most impactful way to do that in the immediate term is to
pass the Judiciary Act of 2021, which would add four seats to the
Supreme Court. Further, we have to require transparency and
accountability from justices who refuse to disclose conflicts of
interests and recuse themselves when those conflicts are present.

Beyond the immediate term, we need to prioritize putting power back in
the hands of democratically accountable individuals. As Harvard law
school professor Niko Bowie shared
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the Presidential Commission on the Supreme Court of the United States,
the “Supreme Court is an anti-democratic institution.… The Court
has wielded an anti-democratic influence on American law, one that has
undermined federal attempts to eliminate hierarchies of race, wealth,
and status.”

The time to critically assess and reconfigure the Court’s role in
our society is now. Our democracy depends on it.

_Molly Coleman is the co-founder and executive director of the
People's Parity Project, a nationwide network of law students and new
attorneys organizing to unrig the legal system and build a justice
system that values people over profits._

_Tristin Brown is the policy & program director at the People's Parity
Project._

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