Abolish The Supreme Court

The current frenzy over the vacancy on the Supreme Court in the wake of Scalia’s death should be enough to make it clear to even the most naïve observer that the Supreme Court is a partisan and political institution, and nothing like the group of disinterested non-political sages that we are supposed to believe the court to be. As I wrote in “The Mythology of the Supreme Court,” the idea of the court as a group of jurisprudential deep thinkers is a tale for little school children:

This view of the court is of course hopelessly fanciful, and the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.

In practice, the Supreme Court is just another federal legislature, although this one decides matters of public policy based on the opinions of a mere five people, most of whom spend their time utterly divorced from the economic realities of ordinary people while cavorting with oligarchs and other elites.

The court’s legislative power is matched by its political power since every vacancy on the court is a gift to the dominant political parties. Every time a justice dies or retires, the event provides political parties with yet another opportunity to issue hysterical fundraising letters to the more monied supporters and demand unqualified support from the rank and file while claiming the SCOTUS-appointment process makes the next election “the most important ever.”

It seems to bother few, however, that we live in a political system where the most important political and economic matters of the day — or so we are told — are to be decided by a tiny handful of people, whether they be the chairman of the Federal Reserve, five Supreme Court justices, or a president with his “pen and phone.”

Just as it is supremely dysfunctional for a major economy to hang on every word of a central bank chairman, so too should it be considered abnormal and unhealthy for a country of 320 million people to wait with bated breath for the latest prognostications of nine friends of presidents in black robes from their palatial offices in Washington, DC.

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