A bulwark against ill humors?

Opinion editor’s note: Strib Voices publishes a mix of guest commentaries online and in print each day. To contribute, click here.

•••

This month the U.S. Supreme Court reconvened when public confidence in the court is at a new low. Polls show how dramatically public respect for the court has declined over the last decade. If this decline continues, it threatens our civil democratic society. It is becoming a more serious concern given that the court may play a major role in deciding the 2024 election.

Our founders created an independent judiciary that was supposed to be immune to political pressures and passions. In Federalist No. 78, Alexander Hamilton wrote that an independent judiciary is a bulwark against “ill humors which … sometimes disseminate among the people themselves.” The current court is no longer a bulwark against ill humors. The court may be on its way to becoming one of the ill humors that Hamilton warned about. It is out of touch with mainstream American society and often finds it difficult to render commonsense decisions.

The court is using its awesome power to reshape America to conform to its view of what our country should be. A court majority promotes a nostalgic vision of a white-dominated Christian nation that never was. It only exists in their minds. That vision ignores history as well as our treatment of women and children, persons of color and the poor. The court’s agenda makes it difficult to remedy the shortcomings of our past and build a better America.

For three decades I have lectured on the judiciary at Minnesota Boys State. I was a defender of the Supreme Court and federal judiciary, noting that courts protect our rights and preserve our freedoms. They were fulfilling our founders’ idea of the pursuit of happiness by interpreting the law in a way that provided the maximum opportunity for the maximum number of our fellow Americans to achieve happiness. They were a bulwark against racial discrimination, voting restrictions, and attacks on the right to marry, criminal defendants’ rights, LGBT rights and a woman’s right to control her own body. The courts were the ultimate authority that ensured that rights guaranteed in our Constitution remain in place. Fortunately, a majority of our federal courts still do their job well, but several recent appointees and especially those on the Supreme Court have moved away from that role.

The court acts with impunity while several justices ignore the most basic tenets of ethical behavior. The justices refuse to be bound by a code of ethical conduct. Chief Justice John Roberts has lost control of the court. He has failed to keep politics and passions out. The court has issued a series of aberrant opinions. It has equated money with free speech, allowing our politics to be corrupted by an unfettered flow of money. It has gutted our civil rights laws, holding they are no longer needed when they are needed nationwide. It has endangered the health of women by overturning Roe v. Wade. Its hypocritically convoluted misinterpretation of the Second Amendment has created a violent society. It has condoned gerrymandering and restricted our fundamental right to vote. Space restrictions do not permit listing even more of its aberrant decisions.

The current judicial decline developed over a period of time. The most recent trend started in the late 1980s, when Presidents Ronald Reagan and George H.W. Bush, with the help of the Federalist Society, started a crusade to conform the federal judiciary to their own political agenda. It will take time to reverse that decline. The journey to recapture our federal judiciary starts by electing people who will appoint judges who follow the Constitution, honor the rule of law and adhere to a code of ethics. In the upcoming election, Kamala Harris has pledged to do this. Donald Trump has not.

If elected, Harris should turn to her running mate, Gov. Tim Walz, and to Minnesota’s U.S. Sen. Amy Klobuchar to help shape our federal judiciary. We have been fortunate in Minnesota that whether there is a Democratic or Republican president or governor, good lawyers have been appointed as judges. A majority of Minnesotans understand that we can have good judges who are either left or right of center as long as they interpret the Constitution and the law to protect the rights of everyone. Klobuchar, Walz and other Minnesotans have created a culture that a recent Minnesota Star Tribune columnist described as having a “strong, largely bipartisan consensus [that] has long existed in Minnesota’s legal and political establishment that courts should be insulated from partisan political pressures and public passions.” (“The context of judicial elections in Minnesota,” D.J. Tice, Oct. 7.) I have seen how such a culture serves the greater good. We need to have a similar culture for our federal judiciary.

Your vote in this year’s election will determine whether our federal judiciary, especially our Supreme Court, will fulfill our founders’ mandate to be a bulwark against the ill humors that sometime disseminate among the people themselves. Cast your vote wisely.

Paul H. Anderson is a retired Minnesota Supreme Court justice.