Budowsky: The US Supreme Court is on trial

First and foremost I applaud Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) for proposing legislation to restore Roe v. Wade by statute, and respectfully urge them to oppose any filibuster against that legislation — which would place them in history as critical to saving Roe.

For reasons related to Roe v. Wade and other matters, the Supreme Court is now on trial before the legal community, the nation, the high court of history and the American voters. 

The legal community and nation need to have a serious and informed discussion about the proper role of the Supreme Court. Its lack of a strong ethics code. The integrity of the confirmation process. The strong disrespect certain justices have toward legal precedent. How they addressed their views of precedent during their confirmation. And whether there is a danger that five justices appear to be acting like a factional political party, casting party-line votes, functioning like a super-legislature more than judges. 

Whether they collaborate or not, there is substantive mutual reinforcement between conservative justices, partisan Republican politicians in presidential politics and members of Congress — who have not been beyond “fixing” a Supreme Court nomination — as well as aggressive synergies between ideological views of legal theory and political tactics. 

I would suggest that significantly increased public awareness of the issues mentioned above is directly related to the significantly increased public disapproval of the Supreme Court as measured in respected polls. 

When a Supreme Court majority rules that regulatory agencies such as the Environmental Protection Agency cannot issue regulations that were not explicitly enacted in legislation, surely the justices know that, in the current climate, almost nothing could be enacted into law. Are they planning an outright attack on the concept of regulation by independent and knowledgeable agencies? Should these justices be such power players on climate change policies? 

Why does the court treat the matter of choice aggressively as a political issue that should be solved by politicians at the state level while it seeks to eliminate a state’s authority to protect children and adults from mass murder by military weapons?  

Why shouldn’t America be worried that the same logic and legal aggression that led to the Roe reversal could be applied, based on public views of some justices, against same-sex marriage and contraceptives? 

Why has the Supreme Court done so much damage to the Voting Rights Act in recent years, and so often upheld Republican obstruction of voting rights and partisan gerrymandering?  

Why does the court now agree to decide a case that could allow state legislatures, without any executive branch or judicial review, to adopt the same practices designed to fix presidential elections that are now under major investigation? 

Murkowski and Collins are right to advocate and support legislative proposals to restore Roe v. Wade. I pray they will not support a filibuster to defeat their own proposals and aspirations. This would be a death knell to Roe v. Wade and cause grievous harm to the women who are affected and the men who love them. 

There should be serious discussion about whether to increase the size of the court — not to “fix” the court but to “unfix” the court. There should be a serious code of ethics in which all speeches by justices should be public. None should be secret. Speeches should not be paid. And when spouses of justices engage in partisan political activity, those justices should recuse themselves from related cases. 

The court majority raises enormous questions of partisanship and ideology versus law. The rejection of the time-honored legal principle of precedent. Misrepresentations at confirmation hearings. Threats to women’s rights and civil rights. And polarizing unpopularity for the court. 

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives.