Written by Thomas Magstadt   

The Supreme Court's 5-4 ruling (McCutcheon v. FEC) in favor of an Alabama tycoon who sued the federal government because he was not allowed to spend as much as he wanted to elect Republican candidates in 2012, is a wake-up call. In America today, government on all levels is on the auction block. The only votes that count come with a price tag that puts responsible and responsive government out of reach for all but the super-rich.

Voters need to take back the representative democracy we inherited. Having failed to protect it at the polls, we are now at a tipping point. Our best hope is an informed and engaged electorate. Unfortunately, the message of the McCutcheon decision is clear: holding regular elections is no guarantee that our constitutional rights will be protected – or that the Constitution itself will be respected. We cannot hope to fix the problem unless or until we fix the Supreme Court.

Here are five reasons to fix the Supreme Court:

Reason #1: The Supreme Court has no business making laws.

Article I of the Constitution establishes the legislative body. As such, it has a preeminent place in the distinctive form of government created at Philadelphia in 1788, that being a representative government with three branches, only one of which was popularly elected in the beginning – the Congress. In the beginning, Senators were chosen by indirect election through the state legislatures. The executive is Article II. The judiciary is Article III.

The order in which these articles establishing the branches appear was no accident. It was – and is – highly significant.

The Bill of Rights was notable for its absent from the original document; it was folded into the Constitution in 1791. Important as the First Amendment is, the fact remains that the Bill of Rights was an afterthought – a good, for the most part, but nonetheless an afterthought.

The very first sentence, Section 1, Article I stipulates, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Notice: it does not say anything about legislative Powers vested in the Supreme Court. Section 8 sets forth an impressive list of things "The Congress shall have Power" including: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

There is no mention of campaign financing in the Constitution or the Bill of Rights. None. Nowhere is injecting money into politics or political campaigns given Constitutional protection. Nor is it equated with speech. Corporations are not people in the Constitution either; in fact, the says nothing at all about corporations. Simply noting these facts is enough to underscore the absurdity of Citizens United and McCutcheon.

In a 2011 article on the Affordable Care Act, Dahlia Lithwick, who writes on courts and the law, concluded: "Maybe it's time to stop offering the courts the last word on whether a law stands or falls." The Supreme Court's decisions have confirmed the correctness and urgency of that conclusion repeatedly in the ensuing years, but never more dramatically than in last Wednesday's atrocious McCutcheon decision.

Reason #2: By not protecting the integrity of elections, the Supreme Court is undermining the very foundations of REPRESENTATIVE democracy.

The Supreme Court is sworn to uphold the Constitution. Four of the justices have too shown a disdain the parts of the Constitution they don't happen to like; a fifth, joins them in blocking all attempts at campaign finance reform. All five were handpicked by Republican presidents (two each by arch-conservative Ronald Reagan and George W. Bush).

Justice Kennedy frequently casts the swing vote, making him arguably the most powerful man in America. Key decisions and landmark cases – Gore v. Bush, Citizens United, and McCutcheon – are now often decided in split 5-4 rulings along strictly partisan, ideological lines. Many other decisions of our highest court in the last quarter-century have also been decided by 5-4 majorities. When Kennedy joins the four conservative justices, Roberts, Scalia, Thomas, and Alito, he is something akin to Superman to Corporate America and the super rich.

Reason #3: Size matters.

As presently constituted, the US Supreme Court is too small and there is too little turnover to fairly or accurately reflect the basic rights, group interests, or decent opinions of a diverse society.
Unlike the US, major constitutional democracies elsewhere in the world do not entrust basic rights or the integrity of elections to a mere 9 jurists. Germany has 16 judges, for example, elected for a 12-year term; they face mandatory retirement at 68. Under this rule, four of our current justices would have been replaced years ago. The prize for size goes to India – 31! Japan has 15, the UK 12, Israel 15. Spain's subdivided high court has 74 judges; France's system – even more specialized – has 85 trial judges, and 40 deputy judges. "[W]hile these systems have important structural differences, they do not have the concentration of power that characterizes the US supreme court."

One proposal for reform – simple, in theory – is to expand the Supreme Court to 19 members. "Simple" in theory, because the Constitution gives Congress has sole authority to determine the size of the Supreme Court, which it has, in fact, acted on several times – most "recently" in 1869. That fact alone is a good reason to revisit the size issue.

In practice, however, a Congress in thrall to special interests and donors with deep pockets has no incentive to back reforms, in particular a court reform that would likely lead to overturning Citizens United and opening the door to fair elections. Members of Congress are virtually guaranteed re-election under the current system; reducing the role of money in politics is their worst nightmare.

Reason #4: Rewriting or amending the Constitution is not an option.

Theoretically, it can be; practically, it won't be. The hurdles are too high. Any fundamental changes to the Court's structure, apart from its size, would require a constitutional amendment. With one exception, the language of Article III, Section 1, is unambiguous: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…." Inserting an age limit cannot be done without invoking the prohibitively cumbersome amendment process.

The "one exception" to the clear language in Article III, Section 1 what constitutes "good Behaviour". A strong case can be made for impeaching jurists who fail to protect and defend the Constitution and, above all, the integrity of elections. The reason is self-evident: while free and fair elections cannot guarantee that representative democracy will work, the absence of such elections is a sure sign that it doesn't.

But, again, there is nothing to be prevent Congress from enlarging the Supreme Court, nothing preventing Congress from passing a non-binding resolution encouraging justices to leave the bench by a certain age (say 75), and no reason why Congress could not impeach justices who, for example, seek to usurp powers given exclusively to the legislature – the branch charged with making laws.

Reason #5: The United States is at a tipping point.

Fixing the Supreme Court is an urgent necessity. Why urgent? Because the McCutcheon ruling means that one wealthy individual can now write checks totaling $3.5 million to candidates, political parties and political committees. In 2012, 646 individuals hit the old maximum overall donation limit of $117,000; this tiny fraction of the electorate gave over $93 million directly to candidates and PACs in federal elections.

After McCutcheon, the super-rich 1 percent can go on a campaign spending spree like never before in the nation's history.
According to The Economist (Greenberg and Thibault, "America's Richest Families," 12/03/09) America's 25 richest families were worth a combined $418 billion in 2009. But that's not a good measure of the widening wealth gap. Indeed, according to the Associated Press "95 percent of the income gains reported since 2009 have gone to the top 1 percent."

The du Pont family ranks 8th on the list of richest families. The Carnegie, Ford, and Kennedy families didn't make the top 25. So who did?

Start with the Koch family. There are four Koch brothers – two of them, David and Michael own 42% each of the second largest privately held company in America. Do the math. They could legally spend $7 million in a single election cycle.

Obviously, the Kochs aren't the only super-rich family in America. Ask the Waltons, America's richest family. The 6 heirs to the Walton fortune and empire were worth $90 billion back in 2009.
Or the Mars family. On 1911, Frank Mars launched a candy company out of his kitchen, in Tacoma, Washington. Today Mars is "the world’s largest confectionery company with $30 billion in sales." Three siblings – John, Jacqueline, and Forrest, Jr. – have owned the company since the death of Forrest, Sr. in 1999.

The heirs to the Mars fortune – and others in the elite One Percent Club – may or may not emulate the Kochs, may or may not wish to use their great wealth to buy politicians, may or may not feel the need to get the chocolate equivalent of oil depletion allowances. But if they do, the Supreme Court has thrown the door wide open.

Think Sheldon Adelson, the billionaire Las Vegas casino tycoon before whom Republican candidates genuflected publicly in a shameful display of grubby politics recently. Among the high-and-might who came with hat-in-hand were presidential hopeful Jeb Bush, New Jersey Gov. Chris Christie, Wisconsin Gov. Scott Walker and Ohio Gov. John Kasich.
Voters need to understand that what's at stake in this battle is even more basic to representative democracy than the First Amendment – namely the integrity of the political system based on free and fair elections. Because of shameless gerrymandering, our elections are essentially rigged to thwart the will of the people. Because our highest court says corporations are people and money is speech, our government is in the pockets of plutocrats and colonized by corporations.*

For these reasons, reconstituting the Supreme Court is not only necessary, but urgent. And until it happens, a return to a more proper political order will remain beyond our reach.

*For a recent example of how plutocrats and PACS often dominate politics to the detriment of the public interest at the state level, see http://www.nationofchange.org/koch-brothers-quietly-seek-ban-new-mass-transit-tennessee-1396444644

NOTE: The sources used in the research for this article can be found at http://www.nationofchange.org/five-reasons-fix-supreme-court-now-1396791105 where this article first appeared.