Regarding the Supreme Court

1 - The Solution Under the Current Context

Recent events in the United States have brought a new focus to the Supreme Court by the general public. Reactionary rulings regarding abortion, environmental protections, and indigenous land have rightfully sparked outrage among large swathes of the population both within the US and without. This renewed focus and ire has drawn considerable attention to a central question: what is to be done? How should an undemocratic institution which has free reign to make far-reaching changes without any outside input be handled?

Many solutions have been offered. Among liberal circles, ideas like term limits, age limits, or elections have been proposed. These changes, whilst useful, do not fix the core problem. If a person has the genuine support of the people, why should they be forced to resign assuming they haven't done any wrongdoing? What makes the elderly, according to predominantly young liberals, unable to make rational decisions? How should elections work for a Supreme Court justice? Should they be elected once and rule for life? Would they have terms like any other elected official? If the latter, why bother? Why should there even be a Supreme Court if they were reformed to essentially function like a significantly smaller legislature?

It is because of these lackluster solutions that a new solution must be found; something that goes beyond either minor reforms to an undemocratic institution or creating what would essentially be a smaller chamber of Congress. For this reason, parliamentary sovereignty may very well be a solution to the question of the Supreme Court. In essence, parliamentary sovereignty is the concept that the legislative body in a government is above other branches of government. It frees the legislature from the influence of the courts and oftentimes integrates the executive branch into itself. Several countries already follow this concept, such as the United Kingdom, Finland, and New Zealand.

Assuming parliamentary sovereignty was implemented in the United States, what would it look like? The US does not follow a parliamentary system, and so some may contest that this solution is incompatible with the country. This, whilst a valid concern, is not as damning as it may initially appear. To prove this point, it is crucial to illustrate how a parliamentary sovereign United States would look.

First and foremost, there would be a much clearer separation of duties between the supreme courts and legislatures at all levels. Parliamentary sovereign countries usually divide the duties of their supreme court from the legislature. This arrangement often takes the form of the legislature/parliament creating legislation, laws, and rights whilst their supreme courts simply clarify unclear laws and resolve legal contradictions. Most importantly, the courts in these countries do not have the power to make significant changes to what the government can and can not do, and do not hold power over the rights of citizens in the vast majority of cases they preside over. Further, if the legislature desired to do so, any rulings made by the Supreme Court(s) could be overruled by their respective legislatures. This would hold true at every level, including the federal Supreme Court and Congress as well as state supreme courts and legislatures.

Following this vital change, more reforms could then be made. Members of the Supreme Court could be elected by the people, and term limits could be established. The idealistic fetishisation of the institution as an apolitical bastion could finally be seen for what it is: nonsense, and its powers would be appropriately curbed to address reality. Going further, the court could be expanded in order to distribute its power among more people, as well as making each person's vote more meaningful.

One final question may arise when all of this is done, however. Some may ask "who ensures Congress follows the constitution?" This is a relatively simple question with a complex answer. The simple solution that most countries with parliamentary sovereignty pose is that any act made by the legislature is inherently constitutional. This is fundamentally a good idea, though it can be argued that it is incompatible with the material conditions of the United States. With the wild gerrymandering and election tampering done by reactionaries within both state and federal legislatures, giving them more power could most certainly lead to regression. For this reason, more changes are necessary.

Before unprecedented power can be lent to the legislature, electoral reforms are necessary to ensure said legislatures are genuinely democratic. Shifting from a plurality system, representation should, for the time being, be allocated by the proportion of votes a party/candidate receives, rather than by who gets the most votes in each geographic area. Referendums and petitions should be built into the political process so that the people can directly propose and pass legislation. Gerrymandering must be eliminated, both by being more harsh on outlawing the practice and prosecuting those who continue to partake in it as well as by simply making electoral districts obsolete in favour of proportional representation. Finally, legally undoing the ruling made in Citizens United v FEC would be crucial in reducing the impact that wealth has over elections. These reforms, if combined, would be strong enough to ensure the legislature is as democratic as possible under a liberal regime and would allow for parliamentary sovereignty to be constructed.

Now that the theoretical basis of this solution has been laid out, the practical agenda must be created. Of course, it is impossible to predict with certainty how the situation must develop, though a general outline is still possible. Firstly, non-reactionaries and progressive elements must take control of the federal government. Congress must be prioritised, followed by the presidency. From there, electoral reforms can be made whilst the reactionary actions taken by the Supreme Court can be defunded and reversed through legislation. Finally, a constitutional amendment must explicitly create parliamentary sovereignty and state the newfound duties of the legislature and Supreme Court. The road to such an amendment would no doubt be incredibly difficult to forge, but it is vital that an attempt is made to go down that path. The reactionaries and fascists of the nation will and are doing everything to stop this and any other sort of positive change in the United States, and they must be fought at every step of their agenda. Otherwise, there may no longer even be a hint of a reformist solution to the fascists' oppression.