The Problem of the Supreme Court

The Supreme Court has ruled this week to allow strip searches in police stations at the will of the police.

They accrue some arguments to support this stunning decision, but the basic truth is this 5 man majority court will rule for those in power, whether they be the police or the rich or the politically powerful no matter what the case or the cause.

They have become a 5 man junta.

Now, I realize, when the Supreme Court ruled to allow abortion as a right guaranteed by the implied privacy right found in the Constitution, the Reactionary Right was livid and calling for the impeachment of the justices. When they ruled that the doctrine "Separate but equal" was a non sequitur because separate meant inherently unequal, the Right was appalled and they railed against judicial activism and the over ruling of laws enacted by elected officials by an unelected group of elitist men.

But in these cases, the fact is, the elected officials who had voted for laws were a majority only in a narrow sense: They were a majority in a particular conservative state or they were a majority only in the Jim Crow South, so the Supreme Court was reflecting a national consensus in each case.

And they did something in each case which moved the country in the right direction.

In the case of Roe vs Wade they moved women out of back alleys and into safe clinics. They did not end the fight over abortion, but they protected women's lives until the people's representatives could act. The problem is, of course, the people's representatives have been too afraid to act, and so the country has remained in limbo. Polls suggest if the right to abortion were ever put to a nation wide referendum, it would be legalized but neither those who oppose it nor those who would protect it want to vote on this issue. For the opponents of abortion, they fear a vote because the numbers suggest they would lose, and it has been more useful to them in terms of money and jobs to have a dragon to slay. For the supporters of "Choice" there is the fear of a well organized minority, which has a greater sense of grievance, winning at the polls, where only 40% of the electorate would bother to turn out, and it would be the most fired up 40%.

The fact is, nobody is actually "for" abortion. There are those who think it murder and those who wish it never had to be done, but are willing to accept it, as a last, sad resort.

With respect to Brown, well, that was part of a past of which we can be happy--a deep wrong was righted and Blacks and Whites both benefited. We have a society which is far less overtly racist than it was in the 1950's.

But now we have the demon seed of George W. Bush, in the form of these five Republican justices, Scalia, Thomas, Alito, Roberts and Kennedy, whose votes are so predictable and pernicious as to constitute a threat to ever making progress in this country.

You can say, well, if the Democrats could only win enough support, the Supreme Court will be irrelevant--pass a single payer or extend Medicare to everyone and the Supreme Court will have no case to rule on--until Medicare itself becomes a court case. And how do you think these five will vote then?

The point is, we do not have to tolerate this ring through the nose of the Republic. Article III of the Constitution is very brief in its description of the Supreme Court. It says only justices shall serve as long as they show "good Behaviour." What that means is anyone's guess and has only rarely been tested. We have accepted life terms for the justices and a lack of impeachment by tradition. Even Franklin Roosevelt, in the perilous times of the Depression, with a solid majority behind him could not get the support he needed to "pack" the court, i.e., to simply add enough justices to out vote those who stood in his way.

I would like to think there is more appetite now to bring this set of 5 angry men to justice. They are a tiny cabal of misanthropy and authoritarians who ought to be vanquished.

One of them, Scalia, claims to channel the founding fathers for his opinions: Well, let him channel Jefferson, who believed the country would always need a "little revolution now and then."

Let us have the same courage to change things Jefferson and Franklin and Adams had.

Let us identify perfidy and arrogance next to which King George III is a piker, and let us through off the chains of our more recent King George the W, and rid ourselves of these scoundrels.

Let's impeach the 5 of them, or pack the court with 5 more liberal justices and let's pass a term limit, say 6 years for each and let us change this country.

Of course, you'd need some Democratic majorities in the House and Senate to do all this, but we can all work on that, to save the country.