I remember a conversation I had with one of my grandchildren several years back. The topic was the three theoretically co-equal branches of the federal government. For the benefit of any none-regular readers who may be monitoring my site today, they are: the Executive (basically the presidency), the Legislative (Congress) and the Judicial (at its apex, the Supreme Court). That many years ago (the grandchild graduated from college several years ago, with honors I might add) it was already apparent that the co-equal part was a myth. Today it is an obvious problem.

Six current Supreme Court justices (five Republican nominees and one Democratic) have all recently been implicated in “issues”. In fairness the Democratic nominee’s only issue was the failure to recuse herself in cases involving the publishing industry after receiving compensation from that industry for a book she wrote. The compensation was properly and promptly disclosed. I’m not sure you can call that a “sin” but I’m trying to fully disclose and fairly judge.

Clarence Thomas is only surpassed by Donald Trump in the rate of scandals revealed. To anyone paying attention it was apparent that he was less than pure as driven snow for years and recent reporting has only confirmed that. His transgression are too numerous for me to cover within the constraints of today’s article.

Even Chief Justice John Roberts appears to have benefited from his position. I’d have to say that Roberts is the most widely trusted justice on the Court today. That’s kind of like being the biggest amoeba.

The reality is that the Supreme Court, unlike all other federal institutions has no oversight. Once a justice is on the Court in reality, he or she can do anything they want to do. The Court’s rulings have no oversight. The legislative branch can pass a new law and the president can sign it but the Court can simply – correctness doesn’t matter sans oversight – declare it unconstitutional and thereby void.

The president is largely held in check without legislative approval, which isn’t always easy to get in a politically polarized environment. Even if both branches agree the Court can simply declare their actions as unconstitutional.

The president is very limited in what they can achieve via executive action. The reality is that much more was attempted by executive action by Obama and Trump and to a lesser degree by Biden.

The legislative branch is divided by needing both chambers to pass exactly the (word for word) same bill before it even goes to the president’s desk. The House and the Senate aren’t on the same page very often regardless of what the uniformed in the public may think. Assuming they agree on a bill the president may veto it which requires a two-thirds vote in both chambers to override. Not an easy task especially in a politically polarized environment.

Looming over all these legislative and/or executive actions is the Supreme Court’s ability to simply declare their action null and void with no oversight or appeal of that decision.

This is a flaw in our system and recently it has been exploited more than at anytime in American history. The only time that is even close is during the early Franklin Roosevelt administration. It was only the threat of serious court reform (court packing) that reined in the Court and allowed America to recover from the Great Depression (brought on by Republican administrations I might add).

Serious times call for serious measures or at least the credible threat of them. With respect to the Supreme Court and American democracy we are facing such a time.

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