Stars and Swipes: At 250, America’s vital organs of democracy are failing

HAPPY 225TH BIRTHDAY, America. It would be nice to be able to say with even a modicum of sincerity that the world’s oldest continuous democracy is looking good for its age.

Scientists recently concluded that humans go through two phases of rapid biological ageing. The first is in the early 40s, the second in the early 60s. Both mark points when the wheels start to come off the metabolic, muscle composition, vascular, neurological and organ function wagons.

It seems that over the past decade, America has aged in dog years. Its collective cognitive function has diminished to an alarming degree and its organs of democracy – the executive, the legislature and the judiciary – are in a state of decay.

But the celebrations must continue until morale improves. America’s never-ending Trump-themed 250 Birthday bash is the equivalent of Dorian Grey’s portrait in the attic; an external manifestation of internal putrefaction.

The faux swagger of the vulgar, violent UFC spectacle on the White House lawn was followed by the gimcrackery of the jerry-rigged American State Fair, with its power failures, melted vats of ice cream, and near-empty exhibits as the crowds stay away in droves.

And of course, the Reflecting Pool – the stinking, fetid cesspool that cost taxpayers more than 10 times what the US President promised – is the perfect metaphor for the corruption, hubris and incompetence of the Trump era. Meanwhile, another stretch of water some 11,000 km away has exposed the folly of Trump’s latest foreign adventure.

America’s rapid decline of the past decade is all the more tragic, because for so much of its 250-year history, its democracy was ageing gracefully, inching closer to fulfilling its founders’ aim of becoming an ever more perfect union. There were dark, regressive periods in the past, but there was an underlying optimism, a belief that a people bound by ideals over territory could unite to overcome its divisions.

Throughout its history, America’s potential came closest to being realised when its democratic institutions worked together to achieve the greatest good for the greatest number of people. This required presidents with courage and vision, legislatures committed to improving the lives of their constituents and courts that were willing to curb executive and legislative overreach.

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Presidents come and go. So do members of Congress – although not nearly as often as they should. But Supreme Court justices routinely spend decades on the bench, issuing edicts of enormous consequence.

Between the 1950s and the nine justices gradually, and sometimes reluctantly, issued rulings that ensured more equal treatment for more Americans. But acknowledging and protecting the voting rights of minorities, or a woman’s right to choose, or gay Americans’ right to marriage triggered a sustained conservative backlash, which in turn led to both Democrats and Republican presidents and lawmakers applying ideological litmus tests when it came to choosing Supreme Court judges. In the case of Republicans, it also included shameless manoeuvres to rig the number of conservative justices on the Supreme Court.

Supreme Court

The current Supreme Court’s conservative supermajority has served as Trump’s enabler, regularly facilitating and sanctioning his worst excesses, particularly where they coincide with their own ideological agenda. The 2022 overruling of Roe v Wade, which had protected abortion rights for half a century, caused legal chaos and loss of life, with documented cases of women dying as a result of miscarriages or other complications during pregnancy because doctors were afraid to intervene.

In 2024, the Court massively expanded presidential immunity from criminal prosecution for acts that involved the exercise of core constitutional powers. The conservative justices effectively placed Trump beyond the reach of the law with a legally and morally incoherent ruling that failed to distinguish between official acts that have full immunity and those that have presumptive immunity. Former President Richard Nixon’s claim that ‘when the President does it, that means it’s not illegal’ went from being characterised as the malign delusion of a madman to the law of the land.

This ruling stopped separate criminal prosecutions stemming from Trump’s attempts to overthrow the 2020 election and remove top secret documents from the White House in their tracks, paving the way for a second term that has thus far been characterised by grift and corruption on a previously unimaginable scale.

But the Supreme Court didn’t stop there. Over the past year, it has repeatedly used the shadow docket, a system that allows it to leapfrog traditional lengthy hearings to provide immediate relief, to facilitate Trump’s Draconian immigration policy.

On Tuesday, it released the final batch of rulings for this legal term. Some court watchers hailed its decision to reject Trump’s bid to overturn the 14th Amendment’s protection of birthright citizenship with an executive order. Even a first-year law student knows there is no scenario – outside a White House fever dream – where an executive order has more weight than a Constitutional amendment.

Yet astonishingly, four of the six conservative justices signalled their willingness to subvert the primacy of the US Constitution to Trump’s whim. Likewise, they were lauded for refusing to set aside a civil jury’s finding that Trump had sexually assaulted E. Jean Carroll and the $5 million (€4.39 million) in damages she was awarded when there were absolutely no grounds on which they could justify doing so.

For every decision where the Supreme Court majority finds itself constrained by the clear and unambiguous language of the US Constitution, it has issued another half dozen decisions that have expanded the presidential powers in ways that were never previously contemplated.

This John Roberts Supreme Court has shown it’s no slouch when it comes to the art of switch and bait, in which Trump excels.

It upheld, albeit on narrower grounds, the independence of the Federal Reserve’s Board of Governors, but it allowed Trump to fire the heads of any independent federal agencies without having to provide any reason for doing so. Clearly, the justices overlooked the ‘independent’ prefix when it comes to the dozen or so agencies that protect the public interest, ensuring that after decades of independence from political interference, they too will become partisan flunkeys chosen for their blind loyalty rather than their expertise. Jettisoning the 40-year-old Chevron precedent last year had already undermined the role of federal agencies.

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Likewise, the decision to allow mail-in votes with an election day postmark to be counted is little more than a token, the flimsiest of fig leafs when you consider the systemic gutting of the Voting Rights Act, culminating in a decision earlier this year that ensured there will be little or no black representation in Congress from half a dozen southern states. Another last-minute legal drop has turbocharged the ability of billionaires and corporate mega donors to influence the outcome of elections.

In its attempt to preserve its vision of America, the Supreme Court has undermined the democratic system it’s charged with protecting. Not only is it failing to check the rot in the executive branch, but it’s also ignoring its own symptoms of decay. Justices Clarence Thomas and Samuel Alito have between them accepted luxury travel and gifts estimated at close to $5 million (€4.39 million) from conservative patrons, whilst refusing to recuse themselves from cases where conflicts of interest could arise.

More than any other institution, the Supreme Court has served as the tent pole of American democracy. But its rightward slant and the corrosive drip drip of ideological extremism over the past decade have eroded its standing. Poll after poll shows that public trust in the Supreme Court has plummeted to historic lows as the justices charged with protecting America’s Constitution have proven their willingness to undermine it for purely partisan reasons.

By ushering in a vast expansion of Presidential power, the Supreme Court hasn’t just softened the ground for an authoritarian leader. It has thrown the checks and balances system out of whack, discredited itself and ensured the atrophy of the legislative branch.

At 250, America’s vital organs are failing, and no single institution is more responsible than the current Supreme Court, or more precisely its conservative supermajority, which has chosen partisanship over precedent, and right-wing ideology over legal objectivity.

Radical measures are needed if the great American experiment is to recover. Term limits for the occupants of both the Supreme Court and the US Congress would be a good place to start.

Legislation that would impose strict campaign finance limits on billionaires and corporate donors, mitigating the impact of another egregious Supreme Court decision, would be a useful second step.

Marion McKeone is an award-winning journalist, writer and documentary maker.

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