In 1787, America’s Founding Fathers designed our government with three branches so that no single branch could overpower another. The Framers found great comfort in this structure, as it provided a safety blanket against governmental tyranny — something they very much feared due to their previous lack of representation in the British Parliament. In addition to this separation of powers, a meticulous system of checks and balances was put in place to allow the branches to “check” one another’s power.
After nearly 250 years, this structure still stands today. Nonetheless, its well-thought nature fails to be flawless. For one, its design was intended to only benefit wealthy, white men. Furthermore, the judicial branch has proven itself to be excessively powerful throughout history and especially so recently, with decisions like the recent overturning of Roe v. Wade.
There are plenty of articles and newscasts out there to tell you all you need to know about the appalling loss of a woman’s or any person with an active uterus’s right to choose, a right to their body and a right to her or their privacy. To say this decision is devastating is an understatement — it is truly setting us back in time and progress. I could write an entire book-length rant for you, but my point today lies elsewhere: now that Roe v. Wade has been overturned, it can and probably will mean additional reversals that further marginalize women, people of Color, members of the LGBTQ+ community and other groups of the like.
The Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, with a majority of justices arguing that a woman’s right to abortion is not guaranteed in the Constitution. Not only does this decision invalidate almost 50 years of precedent, but it also treats the Constitution as a rigid, unchanging document despite the dynamic nature of our world. Let us keep in mind that the Constitution was written by a group of white, cisgender, men, many of whom owned slaves, in a time when giving women and people of Color any rights was entirely out of the question. For this reason, there are many rights that the document does not guarantee — foreshadowing how the basis for the recent ruling ruling may lead to additional fundamental rights being lost in the near future.
In fact, Justice Clarence Thomas revealed some foreboding suggestions as to his future agenda regarding other Supreme Court decisions. In his concurring opinion for overturning Roe v. Wade, he mentioned revisiting the decisions that paved the way for our right to contraceptives, same-sex relationships and same-sex marriage (all rights that are not explicitly guaranteed in the Constitution). With the Supreme Court’s 6-3 conservative supermajority and the lack of mention in the Constitution, these are unfortunately rulings that could realistically be overturned. This is why we must act now by restructuring the Supreme Court.
First of all, I am and always have been dumbfounded at the idea that nine people control one-third of our government. This small group of people is somewhat invincible due to the lack of term limits on their positions (aside from the possibility of impeachment, which has not happened since 1805). Not to mention, Supreme Court justices are appointed by the president rather than chosen by the people, who are supposedly the root of this democratic republic.
Moreover, there is seemingly a lack of any “zero tolerance” policy for appointee misconduct given that three of our current justices are sexual predators and misogynists. Justice Brett Kavanaugh was a member of a college fraternity that broke into women’s dormitories to steal their undergarments and create flags out of them. He was also a member of the “Tit and Clit” all-male secret society. Most alarmingly, multiple women have come forward with claims of Kavanaugh’s sexual misconduct, but these claims were effectively written off as lies with the help of former President Donald Trump, who himself has 26 sexual misconduct accusations and a track record of making disparaging comments toward women.
As for Thomas, he also has a history of sexual misconduct, specifically sexually harassing his assistant, Anita Hill. After coming forward, Hill was invalidated by 14 white men on the Senate Judiciary Committee who asked her what she had to gain here and whether she was a “scorned woman.” Members of the Committee told Hill that speaking of a woman’s “large breasts” in the workplace is entirely normal and “not too bad.”
Histories of discriminatory behavior within the Supreme Court do not stop with Kavanaugh and Thomas. Justice Amy Coney Barrett was a member of the People of Praise movement, which is a religious sect characterizing women as handmaids who must serve their husbands. In terms of equality, she also holds other warped views, such as the idea that “separate-but-equal [arrangements are] permissible.”
For being the highest court in the land, the justices are looking much like a group of misogynists who will not hesitate to take additional rights away from women and other disadvantaged groups. A “zero tolerance” policy for any type of past or present misconduct must be put in place in order to ensure a better chance at the justices representing our country fairly, equally and professionally.
Implementing a “zero tolerance” policy is not the only way we can and should restructure the Supreme Court. Scholars, such as Professor Ryan Doerfler at the University of Chicago and Professor Samuel Moyn at Yale University, have conjured up a couple of other ideas such as placing restrictions on which types of legislation the Supreme Court should be allowed to review or requiring a 7-2 supermajority in decisions that have an impact on fundamental rights.
Given its lack of term limits, voter impact and action taken in instances of misconduct (especially sexual misconduct, which is proving to be common in the world of politics), the Supreme Court is ultimately an undemocratic institution. Likewise, the Supreme Court holds an unnerving amount of concentrated power: precisely one-third of the government’s power is in the hands of nine people. For an institution with enough power to toy with fundamental rights relating to a person’s identity, whether it be their sexuality, gender, race or something else entirely, it is our civic duty to reevaluate this institution’s distribution of power within the government. To prevent another devastating ruling, we must actively work and lobby for structural change within our government before it is too late.
Anna Trupiano is an Opinion Columnist and can be reached at annatrup@umich.edu.