A Mighty Court – The New York Times

By now, most of us are used to US Supreme Court rulings that are bringing major changes to American life — abortion, guns, same-sex marriage, and more. Another sweeping statement on climate change could be made this morning.

But the Supreme Court’s power is strange in a global context. The highest-level courts in other wealthy democracies tend to be less dominant. Elsewhere, courts can still overturn laws and limit government reach, but they often face sharper limits to their decisions.

There are two main reasons why the US Supreme Court is unusual, and today’s newsletter will explain them. First, the court’s structure allows for little control over the powers of the judges: they have life terms in office, and other branches of government have few ways to overturn a ruling. Second, the dysfunction of the rest of the US administration, especially Congress, has created a vacuum that the Supreme Court is filling.

Supreme Court justices remain on the bench for life or until they choose to retire. In other countries, there are terms or age limits: judges in the Federal Constitutional Court of Germany, for example, serve for 12 years or up to age 68, whichever is earlier.

The American model means that the current constitution of six conservatives and three liberals by the current court is likely to last for years, if not decades. And if judges are careful about timing retirement to benefit their ideological side, it could take even longer. As a result, future elections and public opinion may ultimately have little influence on the court.

In others, restricted conditions and mandatory retirement ages create opportunities for recently elected lawmakers to reinstate and rein in the highest courts. “There is some responsibility,” says Tom Ginsburg of the University of Chicago Law School. “If a court gets too out of hand, there’s pressure to rein it in.”

The US is also making it harder to overturn a court’s decisions. A two-thirds vote of both the House and Senate, or approval of two-thirds of state lawmakers, leads to a constitutional amendment. Then three-quarters of the states must ratify the amendment. This has only been done successfully 17 times in the more than 230 years since the Constitution and Bill of Rights were ratified – and never since 1992.

In other countries, lawmakers can more easily overrule the courts. The Canadian Parliament can pass laws that override court decisions, although such laws must be re-approved every five years. British courts are so weak that their decisions act more like recommendations than orders, said Kim Lane Scheppele, a legal expert at Princeton University.

The US Supreme Court is also empowered by the frequent stalemate in the rest of the federal government. For example, Congress could pass a federal law guaranteeing access to first-trimester abortion, which most Americans prefer. Or Congress could pass laws that give the EPA clearer authority to deal with climate change. Neither happened.

Congressional struggles reveal a wider problem: The US has built so many controls into its political system that it has become what political scientist Francis Fukuyama calls a “vetocracy.” Every part of the legislative process, from the House to the Senate to the White House, is a potential veto for bills. Then there are additional barriers — like the Senate filibuster, which requires 60 out of 100 senators to pass most legislation.

The many veto points make it difficult for even the party that controls both Congress and the White House, as the Democrats do now and the Republicans in 2017 and 2018, to get much done. The courts fill the void.

Other advanced democracies tend to have simpler parliamentary systems. So when a political party or coalition wins an election, it can quickly pass laws to keep its promises.

“When courts do so much work, it is often precisely because the parliament is broken,” said Scheppele.

Many Republicans argue that they are simply abiding by the rules of the Constitution and liberals are complaining because they don’t like the results. (Senator Mitch McConnell made a longer version of this case in a recent interview with The Times.)

But the rules are inherently beneficial on McConnell’s part. The liberal vision for America requires passing laws to make major changes — already difficult in the political system. The Supreme Court adds another veto point, further strengthening a conservative process of small c. That is why much of the democratic agenda now focuses on political and judicial reform. (Jamelle Bouie, Times Opinion columnist, elaborates on this.)

But the conservative process also makes it difficult to implement those political and judicial reforms. So for the foreseeable future, the Supreme Court will likely play an important role in American life.

  • The Supreme Court ruled yesterday that Oklahoma authorities can prosecute non-Indians who commit crimes on tribal lands, narrowing a 2020 decision on Native American rights.

  • The court also said states could be held liable for discriminating against workers injured in military service.

  • Judge Stephen Breyer will formally retire today and help Ketanji Brown Jackson swear in.

A Times classic: Married to a mysterious man.

Advice from Wirecutter: Clean your air conditioning.

Life lived: Hershel Williams, who fought in the Battle of Iwo Jima, was the last surviving World War II soldier to receive the Medal of Honor, and its oldest living recipient. He died at 98.

A programming note: Today we’re introducing a new section in this newsletter – a sports section, written by the staff at The Athletic.

Freddie Freeman’s Tears: He left the champion Atlanta Braves on a $162 million contract with one of the best baseball teams, his hometown Los Angeles Dodgers. So why did Freeman fire his agent after a trip back to Atlanta? Ken Rosenthal has the official talk on a strange situation.

A shooting star in basketball: Emoni Bates was a sixth-grade basketball prodigy, a Sports Illustrated cover at age 15. Yesterday I transferred to Eastern Michigan University. He’s only 18. Can he revive a career that’s just begun?

The beard means business: James Harden is leaving a $47.4 million salary in 2022-23 so the Sixers can help. Can Philly take on the Boston Celtics now?

The Athletic, a New York Times company, is a subscription publication that provides in-depth, personalized sports coverage. More information about The Athletic†

In February, the Orlando Museum of Art opened an exhibition featuring 25 never-before-seen paintings by Jean-Michel Basquiat. But a Brett Sokol Times article cast doubt on their authenticity: One was painted on a FedEx box with a font that hadn’t been used until 1994, six years after Basquiat’s death.

Last week, the FBI raided the museum and seized the paintings. And Tuesday night, the museum’s board of directors fired its director and chief executive, Aaron De Groft, who has publicly maintained that the paintings are genuine.

According to an affidavit from the FBI, De Groft threatened an expert who expressed doubts after assessing the artworks. “Shut up”, De Groft is said to have written in an e-mail. “Stop being holier than you.”