Book: The Hidden History of The Supreme Court

SCOTUS was not originally configured to have final word over whether laws were constitutional. That power was self-appointed by the court in 1803 in the Marbury v. Madison decision.

Since then the court has operated with impunity, oblivious (or at least unconcerned) with public opinion.  Nine (or seven or six) unelected justices, sitting for lifetime appointments, have become the closest thing the US has to monarchs.  There is no recourse, there is no accountability, impeachment is essentially not an option for anything but gross misconduct.  Being unpopular and out of step with public sentiment is not an impeachable offense on the court.

For a democracy, this is a remarkably undemocratic institution.

Thom Hartmann starts the book with a brief history of democracy and the slow climb out of total autocratic rule by kings and churches ever since, basically, the fall of the Roman Empire.  It's been an 800 year struggle to throw off the yoke of oppressive government, starting with the Magna Carta in 1215.  

If we give up Democracy to the powers of darkness now -- the same people that gave us The Dark Ages -- it might be another 800 years before we can get it back.

Hartmann has written over 25 books (it was 25 in 2019 when this was published) and his head is full of details.  He has the correct (in my view) philosophy of representative government, but, because he has written so many "screeds" (a good term for his books) they all tend to run together.  He gets off on a tangent, and runs with it for pages at a time -- whether or not it relates to the "subject" of the book.  I just finished a long chapter on the history of the slave trade.  I don't think the Supreme Court was mentioned once.

Hartmann says, without any sense of irony, that conservatives saw the Roe v. Wade decision as "a miscarriage of justice."  Odd turn of phrase, that.

This book was written before Roe was overturned, of course.

I guess I knew, but had forgotten, that John Roberts was George W. Bush's lead lawyer in getting the 2000 election overturned.  Several analyses after the Rehnquist Supreme Court stopped the count all concluded that Al Gore had actually won Florida, and the presidency.

Bush rewarded Roberts with the Chief Justice chair.

And one of the lawyers involved in writing shady legal opinions legalizing Dick Cheney's use of torture was none other than Brett Kavanaugh. Mitch McCconnell blocked the release of this information during the foreshortened confirmation hearings.

When the Supreme Court was established in 1789, it was six justices.

When John Adams lost to Thomas Jefferson in 1800, he reduced the court to five justices to deny Jefferson any appointments. In 1807 this was increased to seven, and in 1837 to nine. In 1863 it was briefly ten. Congress reduced it again to seven in 1866 to deny Lincoln's successor any appointments, and Ulysses S. Grant raised it back to nine in 1869.  It has stayed at nine ever since.

But Congress has the undisputed power to adjust the size of the court. And has done so, in the past, for "nakedly political reasons."

I saw a comment somewhere that arguably the number on the SC should be the same as some other number - districts for US appeals courts, I think. That would be 11.

richard09 wrote:

I saw a comment somewhere that arguably the number on the SC should be the same as some other number - districts for US appeals courts, I think. That would be 11.

Thirteen, actually and that would allow each district to supply a Supreme Court Justice for a rotating 4-year term -- a proposal with a lot of support.  Right now the nine justices oversee the 13 circuit assignments without sharing their SCOTUS seats with the other lifetime-appointed circuit justices.