Generational Change

Generational change performs an important role in American society by implementing change on social and political issues in the continuously evolving United States. The best example of this is the passage of the Civil Rights Act of 1964, and the end of segregation in America. As new generations of young people entered college after World War II, many questioned the entrenched ideology of white racial superiority and the political solution provided by state sponsored segregation, and horrified at what they found, united to protest for change. An eclectic mixture of ethnicities joined to overturn centuries of morally corrupt white dominance, forcing the legislative, executive, and judicial branches of government to follow suit. The following year, the Voting Rights Act halted state sponsored efforts to deny African Americans a place at the polls, and the United States finally achieved its promise of a democratic nation.

The effects of generational change on the individual’s political and social life in 2014 abound as more states act to provide support for same-sex marriage and the legalization of cannabis sales and use. As young Americans enter the political fray at the state and national level, their attitudes reflect a greater tolerance for issues conservatives find intolerable. Both of these movements find overwhelming support at the local level, but national politics are catching up as generational change makes its way into the legislative and executive branches of government. For the most part, generational change is positive and continues to move the country in a progressive direction, but the single branch of government resistant to generational change is the judicial branch.

Because Supreme Court justices serve lifetime appointments, generational change has little or no effect on its members, as the average age of appointees is 53. The United States is governed by a set of laws overseen by a nine-member panel of individuals whose attitudes on social and political issues remain mired in the past. Reinforcing the tendency towards conservative values, justices do their work in private, without any accountability to the people forced to live under their laws. The concern that justices would lose touch with the will of the people was very real for the original framers of the Constitution, and that is why justices were mandated to ride circuit in the region they represented.

In The Great Decision, Cliff Sloan and David McKean described the legislators’ reasoning for insisting that Supreme Court Justices actively participate in circuit riding as mandated in the Judiciary Act of 1802. “Republicans claimed that it was more desirable to have Supreme Court justices riding circuit court instead of simply huddling together in Washington two times a year where they were isolated from the American people; the justices should be more in touch with local law and custom.”(Sloan, 102) William Howard Taft, the only person to serve as both President and Chief Justice, ended circuit riding when he joined the Supreme Court in 1921. The mandate by the nation’s founding fathers to circuit ride must have seemed overly taxing for a man who was so morbidly obese that he required a specially made bathtub that could fit two full-grown men.

In addition to circuit riding, rule changes governing the Supreme Court have further reduced the workload required of the justices, and placed additional barriers between its members and the public. In her book, Out of Order, Sandra Day O’Connor provides an insider’s perspective on the evolution of the Supreme Court’s standard operating procedures. “Today, with no obligation to ride circuit, the Justices enjoy their impressive and comfortable quarters at One First Street. The Court’s role in picking the cases it hears has also changed dramatically…the Court’s docket was inundated with…cases that the Justices were…obliged to decide on the merits, regardless of their importance or the urgency for review. Today, the court uses its discretion to select a small subset of cases from approximately eight thousand appeals…oral advocates are strictly limited to thirty minutes of argument time…and advocates are lucky if they get more than two unbroken sentences out of their mouths before the Justices interject with difficult questions.”(O’Connor, 9-10) While O’Connor takes pride in the Court’s evolution, the streamlining of justice allows it to choose the cases Justices will hear, and ignore cases focused on difficult political or social issues.

No longer beholden by a congressional mandate in the cases it must review, the Court dodges attempts to address the constitutionality of same-sex marriage, an issue the conservative Justices whose social views are colored by Abrahamic religion stonewall by deferring to state’s rights. As the U.S. population experiences generational change, its opinion on same-sex relationships and the people who are in them has become more accepting, but the conservative S.C. Justices remain mired in a pre-gay world where homosexuality was practiced in the closet. The LGBT movement rightly compares itself to the Civil Rights movement because in both issues the Court created two levels of citizenship, state and federal. In the end, a legislative amendment defining the rights of the LGBT individual will be the sole solution to the issue. For the portion of the population between ages 18-40, the normality of homosexuality in everyday life contradicts the strident and strict morality of disgust voiced by conservatives that results in the social disconnect labeled ‘out of touch.’

In the past, government’s resistance to social progress resulted in violent riots that shut down many of the nation’s major cities. Police methods of using fire hoses, dogs, clubs, and officers on horseback to quell opposition resulted in a backlash of greater defiance that the government could not ignore. Passage of the Civil Rights Act was a social victory for the American people, while the violence that accompanied it shook the judicial system to its core. In response, the contemporary justice structure is more comfortable protecting the amorality of corporations over Americans on matters including freedom of speech, campaign finance, and religious exemptions to federally mandated employment insurance coverage. More concerning, the militarization of police forces nationwide means future demonstrations will be met with more sophisticated weapons. Replacing the fire hoses and clubs with rubber and beanbag projectiles, electrically charged probes, pepper spray, and low-frequency sound cannons ensures future protestors will pay a higher price for dissent.

The architects of American democratic government provided the U.S. Constitution as a blueprint that incorporated tools for compromise and change in a country still in its infancy. Peter Irons contended in A People’s History of the Supreme Court that slavery was the central issue for delegates at the 1787 convention, with the term “wealth” becoming “a euphemism in convention debates for slaves.”(Irons, 29) It boggles the contemporary imagination that an ideology of white superiority, a social concept, took precedence over jurisprudence. As gatekeepers to the laws governing the United States, the S.C. Justices’ indifference to unjust edicts actively impeded the social and economic development of black Americans for over two centuries by allowing slavery and separate-but-equal laws to proliferate. The tumultuous decades in post-war America leveled the political and social playing field, but only after young Americans joined the fight. With the far-reaching power to shape American policies, is it a practical notion to continue providing Justices lifetime appointments, and what opportunities exist to guide the institution toward generation change?

The most promising solutions propose reinstating circuit riding duties, allowing congress to mandate a limited number of cases for Supreme Court review, and replacing lifetime appointments with term limits. First, a return to circuit riding can silence the critics who accuse the Justices of being out of touch with the average American’s problems. By participating in the circuit court’s most pressing cases, its judicial overseer gains a clearer insight into the challenges confronting the region’s population. Next, allowing congress to mandate a limited number of cases for Supreme Court review would require the Justices to engage with the laws that it contemporarily avoids. Instead of just choosing the cases it will hear, as O’Connor points out, it will become more responsive to current conflicts as represented by Congress, and the people’s representatives. Finally, replacing lifetime terms with limits of ten years will provide the Supreme Court Justices with a more democratic system that allows more judges to participate in the highest levels of court. Becoming a Justice at the average age of 53, the improvements in current health and medical practices allow lifetime appointments to stretch into three decades of shaping the United States justice system. Alternatively, term limits discourage a handful of Justices from dominating the writing of United States laws for over three decades, and grants a louder voice to a large eclectic judicial pool of possible candidates.

The gentrification of the Supreme Court has resulted in a branch of government that interprets the Constitution through the eyes of a corporate few, reinterpreting long-standing precedents in novel ways that elevate corporate personhood over the nation’s masses. It is an ossified view that only an old, white, wealthy, entitled man can entertain, but injecting new blood into the Supreme Court introduces generational change on this staid institution. Now that the Supreme Court has broken the glass ceiling between religion and government with its Hobby Lobby ruling, opportunities abound for the religious right to press for even more rights that oppress the majority, but fit perfectly with the worldview of a handful of Justices. The time for change is at hand, before the Supreme Court turns the Constitution into what Thomas Jefferson warned, “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”(Burns, 40)

Lifetime Appointments Place Supreme Court Justices Above the Political Fray: The Lie That Provides Supreme Court Justices With Lifetime Appointments

From its inception, the United States government based its authority on the rule of law as decided by the will of the people. After years of enduring the whims of a distant king, the colonists decided on a government of popular representation with each branch of government answerable to the people, with the exception of the Judiciary. Instead, the president nominates a qualified individual to one of the highest positions in government, who the Legislative Branch then votes on, and if accepted, becomes a Supreme Court Justice. After swearing to protect the constitution, the new S.C. Justice begins a term unfettered by the need to seek the approval of the other government branches or the American people, and unburdened by election campaigns or term limits.

As the highest court in the United States, its members are the gatekeepers tasked with protecting the constitutional rights of every U.S. citizen from the unfair encroachment of the Executive and Legislative branches. The gravitas with which it carries out this task places the Supreme Court beyond reproach. However, has the court proven itself worthy of this power by observing a history of fair judgments untainted by political ideology? Have the justices earned the privilege of serving a lifetime commitment protecting the constitutional rights of American citizens? Is providing this small group of individuals with such far-reaching power good for a democracy?

The popular argument for providing Supreme Court Justices with lifetime appointments is to place them beyond the ideological reach of the party politics forced upon elected officials. However, any objective history about the United States Supreme Court’s impact on American civil liberties provides ample evidence that its members are politically committed to a particular party. It begins with the model case for understanding how the Supreme Court gained the power of absolute authority over the constitutionality of American laws, the 1803 Marbury v. Madison case.

The details of the case revolved around a political battle between the outgoing Federalist presidential administration of John Adams, and Thomas Jefferson, his Democratic-Republican predecessor. Jefferson accused the Adams administration of packing the federal judiciary with last minute appointees and refused to deliver three commissions, one of which belonged to William Marbury. Marbury v. Madison signaled the first of many political battles waged by presidents to select federal judges who fit the prevailing characteristics of the ideological climate. For example, Sandra Day O’Connor described President George Washington’s selections for the Supreme Court as, “reliable supporters of the Federalist cause, had service in the Revolution, were active in the political life of the nominee’s state, and were favorably regarded by the President or other well-known Federalists.”

Adams, too, selected Federalist-affiliated Justices for the court, leading to a showdown between the Jefferson administration and a Federalist-packed Supreme Court. From its very inception the highest court in the nation was shaped by political forces and it became the norm, not an isolated event. Speaking about the contemporary selection process, O’Connor said, “Every President making appointments has tried to appoint people who were politically acceptable to the President himself.” If the President’s search for Justice appointees relies on ideological equivalency, how, then, can its members claim exemption from the political vagaries facing the nation, while asserting a lifetime appointment as the solution?

Examples of the damage caused to Americans by the Supreme Court’s adherence to the prevailing political climate abound in its young history. In 1857 the Supreme Court had an opportunity to correct the injustice of slavery forced onto a large portion of the country’s black population. It was an issue of such importance that in just four years the nation would fight a civil war to overturn the ‘peculiar institution’ of slavery at the cost of an estimated 600k soldiers’ lives. With an opportunity to be on the right side of history, the Supreme Court, instead, ruled in favor of the political tenet in Dred Scott v. Sandford that blacks under the Constitution were a “subordinate and inferior class of beings who had been subjugated by a superior race” with “no rights which the white man was bound to respect.”

In the aftermath of the Civil War and the South’s reconstruction, the Supreme Court received a second opportunity to secure national rights for all Americans in the Slaughterhouse Cases of 1873. It decided on two levels of citizenship, with those laws addressed by state rights gaining precedence over national rights. Some southern states enacted laws requiring separate accommodations for whites from ‘inferior races’ in the public sphere. When the constitutionality of these laws was challenged in the 1896 Plessy v. Ferguson case, the Supreme Court denied that “the enforced separation of the two races stamps the colored race with a badge of inferiority.” Legislation was “powerless to eradicate racial instincts or to abolish distinctions based upon physical differences…If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plain.”

Supreme Court Justices were not immune to the climate of racism that plagued the nation long after the end of the Civil War. In 1914, President Woodrow Wilson appointed James McReynolds, a man with many prejudices, to the Supreme Court. When Louis Brandeis and Benjamin Cardoza, both Jews, joined the Supreme Court, McReynolds refused to sit next to, speak with, and dine with, either man because he was, according to Justice O’Connor, a “notorious racist.” If the Supreme Court lacked the ability to curtail racism within its own ranks, what level of impartiality could black Americans hope for in the early 20^th century?

After supporting a national two-tiered social system for 151 years, the Supreme Court finally took a turn toward supporting civil liberties for all Americans. Led by Chief Justice Earl Warren, the court decided against the segregation of black and white schoolchildren in the 1954 Brown v. Board of Education case. Appointed by President Dwight Eisenhower, who later considered Warren “one of the two worst mistakes” of his presidency, Warren believed separating black children “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

The Supreme Court finished its pivot toward civil liberties for all Americans in 1967 when President Lyndon Johnson appointed the first black American to the Supreme Court, Thurgood Marshall. The following year, civil rights legislation passed that finally broke down the racial barriers separating white Americans and the rest of the country. When President Ronald Reagan selected Sandra Day O’Connor for the Supreme Court, she brought the promise of a truly diverse Supreme Court with her. However, with such a long, dismal record of adhering to outdated, antiquated, and conservative political ideologies, should Americans continue to trust Supreme Court Justices with the power to shape decades of government policy through lifetime appointments based on the false tenet of political neutrality?

President Thomas Jefferson once predicted that the Constitution would become a “mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” With advances in medicine, S.C. Justices enjoy longer terms in office, and the opportunity to mold government policy for the next three decades. In recent rulings, the Supreme Court continued its support of free speech principles in campaign finance, but its focus moved from that of protecting individual rights to allowing more money to flow into the political process. The media uproar in the wake of the McCutcheon v. FEC included a stern accusation from economist Robert Reich that the decision was “the most brazen invitation to oligarchy in Supreme Court history.” He noted the court overturned “40 years of national policy and 38 years of judicial precedents” to reach its conclusion. Has Jefferson’s prediction come true?