Unlike the House of Representatives, the Senate and the office of the president where the people of the country can shift the balance of power, the ideological bent of the country, every two or four years, the third branch of government, the Supreme Court (today, nine men and women) operates on a much longer cycle.
The time frame is uncertain as judicial ideologies shift 6-3 to 5-4 then 4-5 from more conservative to more liberal (or vice versa) as individual appointments are confirmed. When a critical fifth vote is confirmed for one side or the other, the ideological bent of the court shifts.
With hindsight, the above reality is clear. Conservative or isolationist views held sway in the post-World War 1 era, the 1920s, 30s and early 40s. Then came the more liberal swing of the Warren/Burger courts, (the late 40s to the early 70s). We are now in the mid-stage of an increasingly conservative, Rehnquist/Roberts era, bent on unraveling what many see as the social justice gains of the 1970s, 80s and 90s.
These pendulum swings of the court do not bode well for the well-being of the country. Seemingly settled norms (tax and trade policies, abortion, voting, environmental, and human rights, necessary regulatory controls) become unsettled. At best, the lives of many will be made more difficult and more uncertain. At worst, people will die.
Calls for Supreme Court reform (enlarging the court, term limits, imposing rigorous ethical standards) are whistles in the wind.
The makeup of the court is rooted in the Constitution: appointments are for life. A presidential appointment requires Senate confirmation. Amending the Constitution is all but impossible, given the extraordinary majorities needed to pass an amendment. It follows that the compromises the Founding Fathers struck to fashion the Union (however well-intentioned) are all but immutable today. These compromises (made when there were 13 states and population disparities were small) put a constitutional thumb on the scale that favored small population states – they gave each state two senators.
Today, with 50 states and huge population disparities, a relative handful of the large number of small population states can block a constitutional amendment (13, to be exact). And small population states (representing a minority of the nation’s population) have a disproportionate senatorial voice in confirming appointments to the Supreme Court. These realities are compounded for those who would have a more liberal Supreme Court by the fact that most of these small population states are (circa 2024) rural in character and ideologically conservative.
In short, the Founders created a constitutional structure of government in which a more conservative Supreme Court is likely for some time to come; in which amending the Constitution will be difficult at best, and in which the views of a majority of the nation’s population may be discounted. This is the reality that women (in particular) and more liberal large population states must face going forward. The 100-year failure to pass the Equal Rights Amendment is ample evidence of the validity of these observations.
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