Merrill Matthews opined in The Hill that Americans cannot have a more just Supreme Court because poor Venezuelans are subject to dictatorship. How does he make such a leap of logic? He points out similarities between calls for Supreme Court reform in the US and those made in Venezuela, leading to their version of the Supreme Court, called the Supreme Tribunal of Justice, to become an extension of the ruling executive party of Nicolas Maduro. 

Matthews takes issue with the proposal of term limits, an enforceable code of ethics, and calls to pack the court with leftist judges by increasing the amount of justices.

In regard to term limits, Matthews dully observes that Venezuela also has term limits. 

Gasp! We’re communists now! 

Actually, it turns out that almost every country in the world imposes term limits on their supreme court judges. Venezuela is one among many. Even conservative Chief Justice John Roberts has expressed support for the idea. But that information is not convenient to Matthews’ argument, so he omits it. Indeed, omission is a common theme for Matthews, who notes that “term limits will help progressives get any conservatives out sooner so they can put in more leftie justices.” Of course, the term limits would also apply to “leftie justices”, who could then be replaced by conservative presidents.  

On the matter of the enforceable code of ethics, Matthews suggests that such a measure would violate separation of powers. He links to the annotated constitution, which has this to say on the matter: 

“The Nation’s Founding document divides governmental power among three branches by vesting the Legislative Power of the Federal Government in Congress; the Executive Power in the President; and the Judicial Power in the Supreme Court and any lower courts created by Congress. 

Although the Framers of the Constitution allocated each of these core functions to a distinct branch of government, the design of the Constitution contemplates some overlap in the branches’ performance of government functions. In particular, the Framers favored an approach that seeks to maintain some independence for each branch while promoting a workable government through the interdependence and sharing of power among the branches.”

Maybe I wasn’t supposed to read that part. 

It would make sense for elected representatives to ensure that appointed justices are not allowed to engage in unscrupulous activities during their tenures–such as accepting lavish gifts from people who have cases appearing before the court. These activities are truly reprehensible, and are the cause for current calls to rein in the Supreme Court. Perhaps the US did not previously require an enforceable code of ethics, but that was before we were subject to the service of justices Clarence Thomas and Samuel Alito. Mention of these elephants in the room is, expectedly, omitted from Matthews’ article. 

Finally, Matthews accuses progressives of considering expansion of the court in order to pack it with more left-wing justices. I agree with the notion that it is bad form to simply expand the court to give it more justices from one side of the aisle, and I wonder if Matthews expounded on the subject when Republican governors engaged in the practice. He certainly didn’t make any mention of it here. Likewise, Merrill “Omission Machine” Matthews of course fails to provide any context for the progressive reaction: 

The current SCOTUS just ruled in such a way as to remove checks and balances from the executive branch by giving immunity to presidents performing official acts, while also preventing juries from considering official acts as evidence during trials related to unofficial acts. An immediate result is that Trump’s legal team is seeking to clear him of his felony convictions on the grounds that some of the evidence used in the case constituted official acts. So Trump might get away with felonies he committed before he was president because of presidential immunity. Even Trump-appointed justice Barrett opposed this aspect of the ruling, writing that “the Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.” The consequences of such a ruling could be dire. Indeed, Trump’s lawyers argued multiple times that such a perspective meant that he could use SEAL Team Six to eliminate political rivals without being charged. 

Furthermore, our Supreme Court has a 6-3 majority favoring the right wing. This does not remotely reflect the American people. Donald Trump, who did not win the popular vote, was able to appoint three of the current nine justices. The first of which was Neil Gorsuch, who replaced the late Antonin Scalia. Scalia died during Obama’s presidency. The Republican-led Senate of that era proved it was very conscious of the checks and balances existing between branches of government, with then-Senate majority leader Mitch McConnell stating “the American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent.” McConnell insisted the American people had only elected president Obama to perform his duties for the first three years of his four-year term, calling him a lame duck and rejecting his nomination of Merrick Garland in March of 2016, about 10 months before the end of the presidential term. That same Mitch McConnell later pushed Donald Trump to replace the late Ruth Bader Ginsburg with Amy Coney Barrett. The nomination was made on September 26th of 2020–about four months before the end of the presidential term. 52 of 53 Senate Republicans approved.

I’m not saying the democrats are virtuous, just because I criticize the right. Indeed, Joe Biden has a spotted history regarding lame duck Supreme Court nominations. In 1992, he considered persuading President George H.W. Bush to refrain from nominating a new Justice during the end of his term. Later, of course, he was part of the administration that nominated Merrick Garland. 

If you want to call for strengthening democracy vis a vis the Supreme Court, I’m all for it. But rather than writing an ode to Joseph McCarthy–rather than composing a masterclass in omission of key details and in conflation of causation with correlation, I would suggest proposing measures that actually give power to the American people. One could propose, for example, subjecting justices to retention elections, as Japan does, thereby allowing the people of Japan to determine if the judges stay on the bench. I doubt the tenures of Clarence Thomas and Samuel Alito would survive such democratic rigors. Perhaps, America could take things a step further. Maybe the president should only appoint interim justices, with the American people voting for fully-fledged justices during the next election cycle. I understand such a measure would be difficult to institute, but it’s more likely to occur than Matthews’ implication of the US transforming into Venezuela. 

I understand that one should not expect to find all the context in all the articles. That would be impossible. But there’s a difference between leaving a few things out and writing bogeyman partisan propaganda. Moreover, I doubt Matthews has genuine concern for the state of democracy. Rather, he’s enjoying the 6-3 right-wing majority in the Supreme Court, and would prefer to see it remain unhindered by measures that would make it more representative of Americans.