photo by: Creators Syndicate

Keith Raffel

American politics are a mess. Congress is so tied in knots that it can barely fund the federal government. What’s lifesaving medical care for a pregnant woman in one state may be prosecuted as homicide in another. Too often policymakers rely more on pseudoscience than the real thing. Authoritarianism is on the upswing.

I want to take what I’ve learned as a reader and writer of mysteries to identify the villain here. Just who bears the most blame for the mangled machinery of American democracy? Is it Donald Trump? Joe Biden? Elon Musk? The right-wing House Freedom Caucus? The left-wing Squad?

No, too obvious. As happens so often in the best-crafted whodunnits, the story’s roots are buried decades in the past. Let’s go back to December 2000 when the vote count in Florida would determine the victor in the presidential election.

In a judicial coup d’etat, the Supreme Court intervened before the state count was certified and selected George W. Bush as the winner over Al Gore by a 5-4 vote. All the justices in the majority had been selected for the court by Republican presidents and all four in the minority by Democrats. The road to the White House led through the nine justices of the Supreme Court and not the 101 million who’d cast ballots. Late in her life, then-Justice Sandra Day O’Connor regretted joining the majority in the case, suggesting the court should have left the decision to Florida and Congress by holding, “We’re not going to take it, goodbye.”

In last summer’s decision in United States v. Trump, a 6-3 majority of the Supreme Court conjured up a right to immunity for the president “from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” In a scathing dissent, Justice Sonia Sotomayor notes that the majority in the case “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” She goes on to point out that if a president “orders the Navy’s Seal Team 6 to assassinate a political rival,” he would be “immune.”

In 2010, the Supreme Court overturned a century of restrictions on spending in elections in Citizens United v. FEC. A century before that case, Theodore Roosevelt denounced “the use of corporate funds directly or indirectly for political purposes.” The Tillman Act, passed in 1907, prohibited monetary contribution by corporations. Ignoring precedent, the Court concluded “that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

In the 2013 case of Shelby County v. Holder, the Supreme Court decided that a provision of the Voting Rights Act, passed by Congress in 1965 to protect the right of minorities to vote, was outmoded. A 2024 article in the Journal of Political Economy found evidence that the Shelby County holding “decreased relative turnout for minoritized registered voters” due to “voter suppression tactics that have occurred in the absence of federal oversight.” In a 2018 case, the Court resolved to look the other way even as flagrant gerrymandering deprived tens of millions of voters of their voice in choosing representatives.

Overturning 40 years of precedent in last year’s Loper Bright Enterprises v. Raimondo, the Supreme Court directed federal courts to apply their own judgments to interpreting laws rather than those of government experts. As Justice Elena Kagan notes in her dissent, the six-justice majority gives “the courts the power to make all manner of scientific and technical judgments” on climate change, artificial intelligence, healthcare, and any other area of federal regulation.”

When it comes to overturning precedent, though, it’s tough to outdo the Court’s 2022 holding in Dobbs v. Jackson Women’s Health Organization. Half a century after Roe v. Wade granted women a constitutional right to reproductive freedom, the Supreme Court waved its wand and made it disappear in Dobbs.

The evidence is overwhelming. The Supreme Court is seizing power that rightfully belongs to the legislative and executive branches while weakening individual rights. Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett learned their lessons well when they were lawyers on the Bush team in the Bush v. Gore case.

The first step in fixing a problem is recognizing there is one. Over the past quarter-century, then, the Supreme Court has set itself as the expert on all things, cut back on protecting the right to vote, diminished women’s reproductive freedom, given the president a free hand in breaking the law and turned a firehose of corruption on to the electoral process. It’s time to discuss solutions which might include setting fixed terms for justices, expanding the size of the Court or reformulating the Court’s jurisdiction.

The Declaration of Independence was written in reaction to the British king’s “history of repeated injuries and usurpations.” After nearly 250 years, the villain of the story appears to have changed from a supreme monarch to a supreme court.

— Keith Raffel is a syndicated columnist with Creators.