Supreme Court III

Revolution

You say you'll change the constitution
Well, you know
We'd all love to change your head
You tell me it's the institution
Well, you know
You better free your mind instead.

But if you want money for people with minds that hate
All I can tell you is brother you have to wait

On July Fourth, it seems appropriate to ask if we are in another revolution?

The (Supreme) Court serves as a crucial guardian of the rule of law and also plays a central role in major social and political conflicts. Its decisions have profound effects on the life of the nation. Though conflict surrounding the processes by which the President nominates and the Senate confirms Justices is not new, it has become more intensely partisan in recent years.

So goes the introduction to the Final Report of the Presidential Commission on the Supreme Court of the United States. There has been, IMHO,  a judicial coup in the Supreme Court. A majority of the Court representing  a view of a minority of the Nation have rendered decisions that only intensify this partisan debate. These opinions, IMHO, are themselves “egregiously wrong,” in Justice Alito’s current usage of the word, not the original usage of the word. Justice Thomas has written opinions which make statements that are factually incorrect. Justice Thomas has also stated that constitutional issues on contraception, same gender marriage, etc., should be reviewed, although selfishly not miscegenation, which could effect him personally. If the SCOTUS ruled that one plus one was three, it would not make this statement correct. SCOTUS is supposed to make factual statements to render opinions about the constitutionality of laws. If it does not, it is in conflict with its oath to uphold the Constitution. 

The role of the Chief Justice may be the most significant role in overcoming this judicial coup.  The most important decisions of the United States require a super majority. https://dbeagan.blogspot.com/2022/06/supermajority.html. A criminal case requires a unanimous decision. A civil case requires a less than a uniramous decision but still a supermajority. Simple majorities invite a culture of domination, where the majority dominates the minority. The Constitution was designed to insure that the majority does not dominate any minority. Mankind is a group animal. There are decisions that must be decided by the group,  The question is how to make those decisions. 

 A unanimous decision can be blocked by any minority, even a minority of one. A majority decision invites tyranny of the majority,  which is expressly what the Constitution was trying to avoid. An efficient supermajority was found by Caplin and  Nalebuff[1] to be 64%. Within one standard deviation from the mean in a normal distribution will contain 68% of the values. Both are remarkably close to the Constitutional mandate of two-thirds. If two-thirds of a group support a decision then it probably does reflect the decision of the group, not just any majority of that group.

 In keeping with the role of the Chief Justice, it would seem that the decision of HIS Court should reflect the will of the Nation, not just the majority of the court. It takes four justices to decide that Supreme Court will even hear a case. The Chief Justice can, and should, impose a rule that the opinions of HIS Supreme Court are not the binding on the Nation unless a supermajority, not a simple majority, supports that decision. That means under the current SCOTUS,  decisions should require the support of six of the nine justices to be the decision of the nation. To do otherwise is to risk that decisions on gun control, contraception, marriage, and other issues including abortion could be decided by a majority of the SCOTUS but a minority of the nation. 

There are probably other recommendations that are appropriate from the Commission’s Final Report concerning  membership and size of the Court, terms, and term limits,  and other items that are not under the Chief Justice's purview.  On this Fourth of July lets us hope that Chief Justice Roberts can find the time to read the report and help prevent another revolution.

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[1] Econometrica, Vol. 56, No. 4 (July 1988), 787-814