Earlier this month, the U.S. Court of Appeals for the Fifth Circuit issued a verdict in Sterling v. City of Jackson that demonstrated a flagrant disregard for public safety. Residents of Jackson, Mississippi alleged that city officials exposed them to lead-contaminated water and misled the public about the safety of the water. That may be, declared the court, but “the Constitution does not provide redress for every governmental wrongdoing.” It does not guarantee the right to clean drinking water or freedom from government-caused contamination. It does not guarantee access to truthful information from public officials.
Judge Kurt Engelhardt, who wrote the Fifth Circuit’s ruling, is a Republican nominated by Donald Trump after his election in 2016 despite losing the popular vote (but winning the Electoral College). Engelhardt and nine other Republicans slammed the door on justice for Jackson’s majority Black population. The ruling stands in sharp contrast to the Sixth Circuit’s handling of the Flint, Michigan water crisis in 2014, when residents were allowed to pursue constitutional claims and ultimately won a $626.25 million settlement.
This new decision demonstrates the consequences of a despotic judicial system arrayed against the people it’s meant to serve. It lays bare the undemocratic nature of the current political order, which insulates the judiciary from public accountability.
Some seek solutions to these contradictory rulings within our existing constitutional framework. They argue that under the Due Process Clauses of the Fifth and Fourteenth Amendments, the core question is whether the state is unlawfully depriving a person of a fundamental right. In short, judges should interpret the Constitution differently. Others, such as Hernando Díaz-Candia, claim that contradictory rulings arise because there is no uniform standard for managing environmental rights. “It is often said that the primary responsibility for environmental protection lies with the states,” explains Díaz-Candia. “However, national uniformity is desirable. Such uniformity can ensure that environmental regulations and standards are consistent.”
Díaz-Candia and company are well-intentioned, but their solutions do not touch the root of the problem. All too often, we find ourselves stuck in a legal tug-of-war over differing interpretations of the Constitution, or cling to the hope that the judicial branch will come to its senses and do what is morally and ethically right. But Sterling v. City of Jackson is yet another piece of evidence that haggling over constitutional interpretation or waiting for judges to listen to their better angels is a lost cause.
Instead, we need a clean break from the current system. We must fight for the creation of a fundamentally new legal order. One of our Constitution’s central undemocratic features is the power held by unelected judges—the Supreme Court being the most egregious example. Having usurped the power of judicial review in Marbury v. Madison, the Court can decide to hear cases, or ignore them; overturn a ruling, or uphold it. Ultimately, they have the final say in all matters.
Consider the math: nine judges hold more power than some 330 million people. Nine unelected people get to interpret our constitutional rights, determine whether our government bears any responsibility for public safety, and dictate the terms of our existence. Shouldn’t we get a say in all of this?
Other countries handle the issue of judicial power quite differently. In Germany and South Africa, specialized constitutional courts have fixed twelve-year term limits and mandatory retirement ages; limiting the power of judges over their constituents. In recent years, both Mexico and Bolivia changed their constitutions to allow the direct election of supreme court judges; Mexico in 2024 by constitutional amendment, and Bolivia in 2009 through an entirely new constitution. Clearly, other countries are more forward-thinking than the United States when it comes to asserting democratic control over the judiciary.
Amending the U.S. Constitution is nearly impossible. Two-thirds of Congress or state legislatures are needed to propose an amendment, but rarely does one party hold a supermajority in Congress. Most of the time, power is split along partisan lines, making it rare for members to cross the aisle to come to the aid of everyday Americans. Furthermore, the requirement of thirty-eight of fifty states to ratify an amendment is an extremely high hurdle to overcome in an era of deep political division. Article V’s principle of “one state, one vote” also violates the idea of equal human suffrage. This is why we can’t simply amend or rewrite our founding document through the existing constitutional rules.
Sterling v. City of Jackson shows the desperate need for constitutional change; we are locked in a system of minority rule that insulates the courts from the public. We need to fight for a radically democratic judiciary, where judges are chosen by universal suffrage, serve fixed terms, can be recalled at any time, cannot overturn legislation passed by Congress, and are paid modest wages. At the highest levels of government, nine people can seal the fate of 330 million others. We must break with the current order and establish a democratic judiciary that is accountable to the working-class majority.
Light & Air / Marxist Unity Group
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