Dear Reader,
The U.S. Supreme Court has a dwindling number of supporters these days. With so many scandals originating in the Supreme Court, it might be hard to remember what is going right. Structurally speaking, the Court still has the power to do justice and could theoretically choose to do better than it is doing now.
Judicial reform proposals include term limits, effective judicial ethics rules, or increasing the members of the Supreme Court. Few, if any, have proposed that the Court’s independence, itself, is the problem. Yet, the Court is more vulnerable than ever to accusations of corruption and capture by wealthy corporations and politicians.
Trust in the U.S. judicial branch is so low that it is not unfathomable that the U.S. judiciary may soon go the way of Mexico’s new politicized judiciary. Amid the insanity of the U.S. 2024 election, then Mexican President Andrés Manuel López Obrador’s movement for judicial reform succeeded. On September 15, 2024, President Obrador signed the new constitutional amendments into law known as “Plan C” ending Mexican judicial independence.
To successfully ratify Plan C into the Mexican Constitution, Orbador had to convince two thirds of the Mexican national legislature and a simple majority of the Mexican States. The threshold to ratify changes to the U.S. Constitution are slightly more difficult to satisfy. However, Mexico’s overhaul of the judiciary leaves serious questions for the prospect of judicial reform in the United States.
In the final piece of my trilogy of new working papers A Tale of Two Americas, I presented an opportunity for Congress to reform the Courts after the scandal of Louisiana v. Callais this year. The danger of Congress waiting to assert its power to reform the Courts by statute is that the President can step in, as President Obrador had done in Mexico, to end judicial independence in America.
Ending independent judicial review would likely maximize the sway of Trumpian populism in American courts. Guilt and innocence could be doled out on political lines according to who is favored or disfavored by the sitting President’s cult of personality. Such a Court could be used to redistribute wealth and liabilities to the favorites of the President.
It seems that all that would need to happen to create the right circumstances to bring about such a radical amendment to the U.S. Constitution is a populist movement against the Court whose public support is declining. If the Court’s approval rating reaches the point where enough Democrats feel that Trump’s populism is more beneficial to their politics than the Court’s independence then the stage will be set. And Mexico’s Plan C roadmap may be followed by the United States to accomplish what many in Mexico consider to be the end of their Republic.
Yours Cordially,
Joshua J. Schroeder, Esq.