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The Legitimacy of the Supreme Court (as of July 2022)

Aside from being an attorney and entrepreneur, our firm's founder, Attorney Ambur Smith, is also a political scientist and strategist. The following is her attempt at making sense of the most recent decisions of the U.S. Supreme Court, while advocating for progressive politics and policy in Ohio.

In response to the United States Supreme Court’s (the Court/SCOTUS) most recent decisions, Senator Elizabeth Warren argues, “this Court has lost legitimacy. They have burned whatever legitimacy they may still have had after their gun decision, after their voting decision, after their union decision. [T]hey just took the last of it and set a torch to it with the Roe v. Wade opinion." Depending on how you identify, the Supreme Court’s legitimacy has always been questionable.

Whether promoting “Manifest Destiny,” the sociopolitical doctrine justifying westward expansion and indigenous Americans’ genocide (Johnson v. McIntosh (1823)), or arguing that enslaved Africans “had no rights a white man was bound to respect,” (Dred Scott v. Sanford (1856)) the Supreme Court’s stance on matters of civil and human rights throughout history has been disappointing at best, and egregiously discriminatory on many occasions.

Beyond its original sins of legitimizing the subjugation of Native and Black communities, the Court went on to outlaw interracial marriage (Pace v. Alabama (1883)), condone racial segregation (Plessy v. Ferguson (1896) and facilitate the internment of Japanese Americans (Korematsu v. US (1944)). While these decisions were ultimately overturned by later SCOTUS decisions, they defined the experiences of entire generations and solidified the Court’s reputation as a purveyor of discriminatory beliefs and practices. Still, the Supreme Court cannot be viewed in a vacuum. The decisions listed above were those of Justices appointed and confirmed by unfairly elected Presidents and Congressmen.

The Right to Vote and Its Impact on the Composition of the Court

While legal actors throughout history have petitioned the court, they did so against the backdrop of America’s troubling political landscape. Black men weren’t allowed to vote until 1870. Women of all races weren’t allowed to vote until 1920, and foreign born non-white Americans were forced to wait until the 1950s to apply for citizenship and the right to vote. All the while, Supreme Court justices were nominated by the sitting President and confirmed by a majority of Senators, just as they are today. Knowing this, it is difficult to argue anything decided by the Court prior to the late 1950s reflected the true desires of an increasingly diverse American society, but rather served to vest power in a determined white, male minority.

The Supreme Court’s most recent term has already been regarded as momentous and capable of shifting culture toward a conservative agenda rooted in Originalism and “state’s rights.” While the general public rarely engages with the underlying doctrines that inspire justices, law students and lawyers across the nation know that Originalism has historically condoned legal discrimination and the erasure of hard won individual civil and human rights. Originalism at its core requires an allegiance to the Constitution as it was originally written, minus the Bill of Rights and other amendments that grant citizens protections against the will of its state and federal government. States rights, enshrined in the tenth (10th) amendment, have similarly been used to mask state legislatures’ attempts at curtailing the rights of marginalized citizens. By embracing Originalism and states’ rights, the Court’s conservative majority, comprised of four (4) white men, one (1) black man and one (1) white woman in a slew of cases (Vega v. Tekoh reducing criminal defendants’ right to sue officers who fail to read them their rights, even after they are found Not Guilty, Dobbs v. Jackson eliminating federal protection of a right to abortion, New York Rifle & Pistol Association overturning concealed carry gun restrictions in NY, and West Virginia v. EPA deregulating the coal and gas industries) has declared a recommitment to legal discrimination in favor of a determined white male led, but slightly more diverse, minority. The irony that this has occurred alongside the nomination and confirmation of the first Black woman Associate Justice should not escape us.

Progressive Justices on a Conservative Court

Justice Ketanji Brown Jackson’s (KBJ) confirmation, while historical, echoes that of Justice Thurgood Marshall. To influence the Court, and thus public policy, a Justice must belong to the majority in any given ruling. Where a Justice belongs to the minority, they may draft dissenting opinions from time to time, but the final outcome will ultimately hinge on their counterparts who voted in favor of the majority opinion. When appointed in 1967, Justice Marshall made history as the first Black Supreme Court Justice following a decorated career as a Civil Rights Attorney arguing on behalf of plaintiffs in the landmark case Brown v. Board and nearly three dozen more between the years of 1943 and 1961. However, by the time he assumed his seat, the Court’s composition was such that he seldom belonged to the majority on any rulings. In the end, his tenure on the Court was largely symbolic and once he stepped down due to illness, the Republican President and Republican Senate majority wasted no time replacing him with someone ideologically opposed to him on most issues, Justice Clarence Thomas. While KBJ is in good health, so are those in the conservative majority. If history is to repeat itself, her reach will be limited.

Where Do We Go From Here?

Recognizing the Court’s legacy, and the inability for a single progressive Justice to sway the Court in a particular direction, it is important for voters to see the Court as exactly what it is in the fight for legal and political justice – the last resort. The Supreme Court hand selects the lower court cases it will hear on appeal; annually, this amounts to just 1% of cases petitioners appeal hoping the Court will weigh in. With this in mind, progressives will be wise to limit their use of impact litigation to achieve their public policy goals, and rely on other methods such as community organizing, voting, direct action and other extrajudicial strategies. With the midterms around the corner, we must rely on people power and the right to vote to ensure elected officials (the President and Senate majority) ready and willing to nominate and confirm legitimate Justices are in place when another opportunity presents itself. In the meantime, those same officials can pass laws on a state and federal level that expand rather than restrict our rights, and hope the current SCOTUS does not rule those laws to be unconstitutional. More radical progressives may even organize to increase the number of justices, and thus redistribute power between existing and additional judges; a process referred to as "stacking" the Court.

Ohioans must be concerned with both SCOTUS and the Ohio Supreme Court. Before an Ohio case can reach the US Supreme Court, it must appeal to Ohio’s highest court. Unlike the US Supreme Court, Ohio’s Supreme Court justices are elected by Ohio voters. In November, three (3) Ohio Supreme Court seats will be up for (re)election. One seat up for re-election belongs to Governor Mike DeWine’s son, Pat DeWine. Pat DeWine has refused to recuse himself from recent redistricting cases, voting to uphold unfairly drawn, or gerrymandered, maps favoring Republicans. If re-elected, he will continue to preside over cases involving Ohio’s voting maps, and controversial issues such as abortion rights. Those in favor of a legitimate Ohio Supreme Court should commit to voting in favor of progressive Justices and encouraging others to do the same, recognizing the outcome of this year’s Supreme Court race will determine the fate of civil and human rights in the buckeye state for generations. To monitor this year’s Supreme Court races, join Innovation Ohio's email list, and follow them on social media @innovationohio.

To book a consultation with Attorney Smith, to discuss your options RE: navigating an evolving legal landscape as a business owner or employed professional, click below.

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