Okay, But Why Do Nine People Get To Decide Our Rights?

The Supreme Court gets to make decisions that affect our most fundamental rights. When it ruled on Roe vs Wade in 1973 and then overturned that ruling in 2022, it determined our ability to access reproductive care. And in 2015, their ruling on Obergefell vs Hodges gave same-sex couples the right to marry the person they love. Just last year, they ruled that Trump has absolute immunity for “official acts” he commits as President.

It’s concerning enough to think that they’re ruling along party lines, since there are currently six Justices appointed by Republican presidents and only three appointed by Democrats. But the Supreme Court also has no official standards of ethics. Just think — the highest court in the country, making these incredibly important decisions, with nothing stopping them from ruling according to extremist ideology or even greed. 

Justice Clarence Thomas, for instance, has accepted millions of dollars of gifts from Republican megadonor Harlan Crow. And his wife Ginni is a far-right extremist who pushed for Republicans to overturn the results of the 2020 election. How could we possibly trust him to rule fairly on a case like Trump vs The United States?

Congress has the power to change the way that the Supreme Court works — from rules about ethics, to how many Justices there are, to whether they should have lifetime appointments. So talk to the people in your life about the Supreme Court. We deserve to know if these decisions are being inspired by a deep understanding of the Constitution… or a million-dollar vacation to Bali.

For a transcript of this episode, please email comms@redwine.blue.

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Transcript

Okay, But Why Do Nine People Get to Decide Our Rights?

CLIP: JOHN OLIVER: “We still cling to the idea that the Supreme Court is a body separate and apart from politics. It retains a certain amount of mystique and ceremony. We literally put the Justices on a pedestal and let them wear robes like wizards. In their confirmation hearings, they pretend to have no idea how they’ll rule on hot-button issues and we all have to pretend to believe them, before we appoint them to a job that they can hold until they die. We don’t treat them like what they are, which is people, who can be motivated by ideology and greed like anyone else.”

Narrator: The Supreme Court gets to make decisions that affect our most fundamental rights. When it ruled on Roe vs Wade in 1973 and then overturned that ruling in 2022, it determined our ability to access reproductive care. When it ruled on Plessy vs Ferguson in 1896, it created the racist law of “separate but equal,” and when it overturned Plessy in 1954 with their ruling on Brown vs Board of Education, public schools across the country were opened to all students, regardless of race. And in 2015, their ruling on Obergefell vs Hodges gave same-sex couples the right to marry the person they love.

But how exactly does the Supreme Court work? Why do nine people have the power to make these incredibly important decisions? And why are some people worried about whether the court right now is making decisions that are bad for democracy?

You may have noticed that all of those cases we mentioned are named with the legal convention of Person A vs Person B. That’s because the Supreme Court works in some ways like any other court of law, like divorce court or criminal court, where two people (or groups) face off against each other, each hoping for justice. But the Supreme Court only rules on a few of the most special or high-stakes cases. Sometimes they hear cases that involve the government directly, like lawsuits between states or cases that involve US ambassadors. 

But mostly, they work on cases that are being appealed. When there’s a ruling from a lower court, like a district court, and some people involved aren’t happy with the decision, they can appeal that decision up to a higher court. Sometimes, those appeals are brought all the way up to the Supreme Court. Usually, though, the Court only hears cases that involve federal law. They’re basically the legal experts on what’s constitutional in America. They have what’s called “plenary authority,” which just means they’re allowed to hear or not hear whatever cases they want. They get about 10,000 requests each year and end up ruling on about 80 cases.

Justices on the Supreme Court are appointed by the President and approved by Congress. It’s a lifetime position, meaning that once they’re approved, they can serve until they die, they decide to retire, or they’re impeached (which has only happened once, in 1805). The Court is currently made up of nine Justices: Chief Justice John Roberts Jr., and Associate Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. 

But the Court didn’t always have nine Justices. It started as six, back when it was originally established by the very first Congress in 1789. The Constitution allows Congress to decide how to organize it, and in 1869 they raised the number of Justices to nine and it remains that way to this day. The Justices are supposed to be impartial, voting according to their legal experience and their interpretation of the Constitution, but since they’re appointed by Presidents, they usually end up voting along party lines – Democrat or Republican. Although technically anyone can be nominated by the President, Justices are almost always lawyers, judges, or other experts in the legal system. 

But it’s also been a long road to equality for Justices who are women or people of color. Thurgood Marshall became our nation’s first Black Supreme Court justice in 1967, and Sandra Day O’Connor became the first woman on the Supreme Court in 1981. All Justices may be experts in the law, but it’s worth asking whose perspectives are making it into the highest court of the land. Surely a Black Supreme Court Justice would have an important perspective on school integration, for example, and a female Justice would bring an important lived perspective to a ruling about abortion rights.

For almost two hundred years, only white men were allowed to make these incredibly important decisions. In the words of Ruth Bader Ginsburg,

CLIP: RBG: “I’m sometimes asked when will there be enough women on the Supreme Court. And I say ‘when there are nine.’ People are shocked. But there’s been nine men, and nobody’s ever raised a question about that.”

There have only ever been six total women on the Supreme Court throughout our history, and four are currently on the Court right now: Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. And other than Thurgood Marshall, there’s only been one other Black man to be a Supreme Court Justice: Clarence Thomas.

Ideologically, our current Court leans conservative, with six Justices appointed by Republican Presidents and three appointed by Democrats. Justices Samuel Alito and Clarence Thomas are considered the most conservative, ruling according to values held by Republicans – and, lately, Donald Trump specifically. The Court almost certainly wouldn’t have overturned Roe v Wade, for example, if we had a more even balance of liberal and conservative Justices. 

And last year, in Trump vs The United States, they ruled that presidents are immune from criminal charges for any “official acts” they made while in office. It basically ensured that future presidents, including Trump himself, can break the law with no consequences – even for acts that strike at the heart of our democracy, like resisting the peaceful transition of power. 

You can see why people are concerned that the Supreme Court isn’t just an impartial group of legal experts. And there’s more evidence too. In 2021, Justice Alito flew an upside-down American flag in front of his house, a symbol used by extremists who wouldn’t accept that President Biden won the 2020 election. It was carried by lots of people who stormed the capitol on January 6th. And yet, despite this obvious political statement, Justice Alito refused to recuse himself from cases that involved Trump, including cases about January 6th itself. Recuse just means removing yourself from a case because you can’t be impartial. Despite being clearly biased, Alito ruled that a January 6th rioter couldn’t be charged with obstruction of justice and that Trump was immune from criminal charges.

There are concerns about the ethics of Justice Clarence Thomas too. A Senate investigation showed that he’s accepted all kinds of gifts and special privileges from billionaire Republican donor Harlan Crow, like private jet trips, private school tuition for a relative, and luxurious vacations. Other federal judges or members of Congress aren’t allowed to take gifts without approval from an ethics committee, but in 1969…

CLIP: VINTAGE NEWS: “The United States Judicial Conference today issued a code of ethics which forbids all federal judges, except Supreme Court Justices, from accepting fees, gifts, or compensation of any kind for all bench activities.”

Narrator: That’s right, “except for Supreme Court Justices.” So we shouldn’t be surprised that here we have a Justice accepting millions of dollars’ worth of gifts from a Republican mega-donor, right as he’s ruling on cases like Roe v Wade and Trump vs The United States. As far as historians can tell, the extent and frequency of these gifts has never happened before in the modern history of the Supreme Court. 

And Thomas’s wife, Ginni, is a far-right extremist who’s worked for the Heritage Foundation (the group that published Project 2025) and started a right-wing organization called Liberty Central. Incidentally, in 2009 Harlan Crow donated half a million dollars to her group too.

This isn’t to say that every single Supreme Court ruling is decided along political lines. Some end up splitting along other lines, and some even end up unanimous. But you can see why people are worried that the Supreme Court may not be as impartial and apolitical as they claim to be.

CLIP: LEAH LITMAN: “I worry that the next few decades could be like the Hunger Games for liberal constitutional democracy.”

Narrator: When she says “liberal,” she doesn’t mean like political parties. “Liberal democracy” just means the kind of democracy that prioritizes individual freedoms and a separation of powers so no one branch of the government can get too powerful.

CLIP: LEAH: “So after abortion, I think they’re likely to come after contraception. I think they’re likely to come after what remains of the Voting Rights Act. And so I think that they are in a position to really undo what's foundational and important about our constitutional democracy.”

Narrator: This is all really big to think about, so let’s talk specifics. The Supreme Court just completed its current term, which ran from October of 2024 to just a few weeks ago. So what are some of the most important cases from this term that you should know about?

There was United States vs Skrmetti, a case about gender-affirming care in Tennessee. A state law says that doctors can’t prescribe hormone therapy to minors, and since youth who aren’t trans still have access to that medical care, it prompted a lawsuit because there’s something in the Constitution called “Equal Protection.” The Supreme Court ruled that Tennessee’s ban on gender-affirming care can remain in place, which means that similar bans in other states are likely to stay in place too. 

Then there was United States vs Texas, a case that was about all of the lower court judges who’d been blocking Trump’s executive order ending birthright citizenship. Birthright citizenship is in the Constitution – it’s part of the 14th Amendment – so a single president shouldn’t be able to just end it with an executive order. The Supreme Court ruled 6-3 that federal courts don’t have authority to issue nationwide decrees like that, only on behalf of specific people. That’s a little complicated, but basically, legal experts are concerned this could lead to a patchwork of rights and laws across the country. Like if a Black mom sued a public school because they wouldn’t let her child attend, a judge can rule that that individual kid has to be allowed in, but they couldn’t stop it from happening somewhere else to another parent. This is the United States of America and we all deserve the same rights.

Medina v. Planned Parenthood South Atlantic was about whether Medicaid patients have the right to choose where they get medical care. The governor of South Carolina issued an executive order in 2018 that removed Planned Parenthood from the state Medicaid program, even though there’s already a law preventing Medicaid funds from being used for abortions. 96% of the care that Planned Parenthood provides is for preventative care, like screenings, but now women in South Carolina can’t access that care. The Supreme Court ruled that Medicaid patients can’t sue over being denied access to specific providers, even though the Medicaid Act specifically says that patients are free to choose their provider. It feels like more of a vendetta against Planned Parenthood than a real legal opinion.

Those are just three cases from the Supreme Court this year, but you can find more online at scotusblog.com. 

Legal cases can be complicated. That’s why it takes years of law school to become a lawyer and often decades of experience to become a judge – let alone a Supreme Court Justice. But the Supreme Court gets to make decisions about our most fundamental rights. Whether or not you fully understand the legal ins and outs of every individual case, none of us want those decisions to be taken lightly. 

Congress can change the way that the Supreme Court works, from rules about ethics, to how many Justices there are, to whether they should have lifetime appointments. So talk to the people in your life about the Supreme Court. We deserve to know if these decisions are being inspired by a deep understanding of the Constitution… or a million-dollar vacation to Bali.

Sources

https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

https://www.supremecourt.gov/about/faq_general.aspx

https://www.representwomen.org/women_supreme_court

https://www.aclu.org/news/civil-liberties/supreme-court-grants-trump-future-presidents-a-blank-check-to-break-the-law

https://www.pbs.org/newshour/show/former-neighbor-disputes-alitos-explanation-of-upside-down-u-s-flag-flying-at-his-home

https://www.bu.edu/articles/2024/supreme-court-rules-for-january-6-rioter-in-obstruction-of-justice-case/

https://www.politico.com/story/2010/07/thomass-wife-takes-on-obama-039426

https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow

https://womenforward.substack.com/p/supreme-court-wrap-up?utm_source=post-email-title&publication_id=3347870&post_id=168219446&utm_campaign=email-post-title&isFreemail=true&r=35q2ey&triedRedirect=true&utm_medium=email