Supremely Exploitable

Most often the subject of my Sunday article is the biggest American political story of the week just passed. Last week was largely a week where the stories garnering the most ink were basically old news repackaged. Therefore, and not for the first time, I am letting my reading influence my writing.


I am in the process of reading Alexis de Tocqueville’s Democracy in America. Keep in mind this book (which is both nerdy and a monster) was written in the 1830s and based upon the time de Tocqueville spent in America in 1831 and 1832. Many of the examples are dated – for instance at the book’s writing America had only 24 states the most recent of which was Missouri -but most of the principles explored are still applicable. One thing that he brought to my mind was just how relatively easy it would be to exploit the Supreme Court, (omen?). I’ll continue with today’s numbers.

The Senate has 100 members and with the current rules it often takes 60 votes to get anything passed. When it is a full strength, the House has 435 numbers and a majority is 218. So you would have to control 278 members of the legislative branch to get anything through it. Numerically alone, not an easy task to accomplish.
I have long contended that the Supreme Court is the (I’ll get Orwellian) most equal of the three branches of the federal government. The Legislative and the Executive branches at least somewhat serve as checks on each other. The Court really has no check. Congress can pass a law; the president sign it and the Court can simply negate it with no realistically recourse.

Numerically corrupting the Court is a relatively easy task. There are only nine members and five is the magic number there. Simply put, if you control five of the Court’s votes you control all federal outcomes.

One of the somewhat silver linings of the Trump presidency is that it motivated (at least) the more cerebral among us to reexamine the Constitution and laws looking for weaknesses that the evil could exploit. The exploitability of the Court is certainly one.

The Founders assumed good men (and in their day it was only men) as officeholders. That has not always proven to be the case. I’m not talking about people I disagree with. One of the beauties of American democracy is that we can openly disagree.

There is a plethora of suggested Court reforms floating out there that need to be explored – too many for today’s article. Many of them should be – perhaps with slight modification – adopted. All that said, it is obvious that the current setup leaves the Court open to easy exploitation and corruption. In fact, there is much reason to believe it is already largely corrupt. If nothing else that leaves American democracy extremely vulnerable.

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