Liberal calls for expanding the Supreme Court have only increased as the conservative justices keep playing Calvinball with democracy, empowering the mad king Donald Trump and gutting individual liberty, most recently the Voting Rights Act but let’s never forget the overturning of Roe v. Wade just four years ago.
My friend Noah Berlatsky recently wrote over at Everything Is Horrible that Democrats should start openly declaring they’ll expand the Supreme Court once they’ve returned to power (presumably after fumigating the White House). I agree that specifics are preferable to mealy mouthed generalities, which is how most Democratic leaders have responded to an out-of-control Supreme Court. Last week, after four MAGA justices in the birthright citizenship case rejected the plain language of the 14th Amendment, Pennsylvania Gov. Josh Shapiro said, “I think everything needs to be on the table. I think we need radical reform.” (Watch below.)
This is an obviously pre-approved Democratic talking point. After the Supreme Court spat on the VRA, Democratic House Leader Hakeem Jeffries said, “We’re going to have to do something about this Supreme Court. And let me be very clear: everything is on the table.” (I loathe the phrase “let me be clear.” No one is twisting a politician’s arm and demanding obfuscation.)
Berlatsky notes that Democrats are probably skittish about calling for Supreme Court expansion because it’s not nearly as popular as more measured reforms. According to a Brennan Center poll from March, adding seats to the current Supreme Court has just 46 percent support — so arguably not even all Democrats back the idea. Whereas, other perfectly reasonable reforms enjoy greater support:
Mandatory retirement age for justices—73%
Term limits for justices—73%
National elections for justices—55%
Retention elections for justices—53%
Overturn rulings via referendum—53%
Add seats—46%
I think the challenge here is that expanding the court is merely a prescriptive solution to a larger problem: The Supreme Court as an institution has zero accountability. That’s not how a democracy should work. We should not exist at the mercy of robed masters who we can’t realistically replace, despite repeated demonstrations of naked corruption. Chief Justice John Roberts has rejected Senate Democrats’ appeals for basic oversight. Samuel Alito all but told Senate Democrats to go climb their thumbs when they gently suggested he recuse himself from January 6 cases, even after his own wife flew an upside-down U.S. flag — the standard for the “Stop the Steal” movement — outside their Virginia home just weeks after the MAGA assault on the Capitol.
The conservative justices who voted to overturn Roe v. Wade — specifically Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — arguably gave misleading if not outright false testimony when questioned about Roe during their Senate confirmation hearings. That’s ultimately academic, though, because they won’t face any real penalty for lying. There is no “read my lips: no new taxes” backlash. They can serve on the Court for the rest of their lives, which could be decades. Clarence Thomas has sat on the Supreme Court for 35 years, almost as long as there’s been a Law & Order series on the air, which is just insane. No one should have that much power over American citizens for such an extended period.
This is why mandatory retirement ages, term limits, national elections, and retention elections — as well as the ability to overturn rulings that defy popular sentiment or are based in outright false data — are all ideal methods of reforming the Supreme Court as an institution, which is too corrupt and anti-democratic to exist in its current form. (All respect to Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, but they only make the court 33 percent less corrupt and anti-democratic. The math isn’t good.)
However, I must concur with Berlatsky that these necessary reforms don’t address the current MAGA Supreme Court’s ongoing threat. He writes:
Term limits and/or age limits could simply not be instituted in a bipartisan way that would result in a Democratic majority on the court given the fact that (a) most of the Christofascist justices are young and were placed on the court not that long ago, and (b) any plan that did change the balance of the court would be fiercely opposed by Republicans and their voters, causing that bipartisan 73% approval to quickly drop to something much more like a partisan 46%.
There is an overall good-faith argument for containing if not outright reducing the Supreme Court’s power, but the Supreme Court is a threat to democracy right now because these specific conservative justices are hostile to the rights granted to all Americans since the Civil War. Republicans share this hostile view, and they only object on the rare instances where Roberts and especially Barrett show some basic scruple or intellectual consistency.
Obviously, in the alternate reality where Hillary Clinton won the 2016 election and there’s a center-left Supreme Court majority, liberals wouldn’t consider these reforms necessary. Conservatives would argue this makes us hypocrites, but a center-left Supreme Court would be … sane. It would respect precedent and overall democracy. Four liberal justices wouldn’t suddenly pretend that the Second Amendment doesn’t actually exist. No, the problem with the Supreme Court is that conservatives are in control. That’s the blunt reality.
Mainstream Democrats might fear that Americans will view Court expansion as a blatantly partisan response, but that’s exactly how Americans should see this. They should understand that Republicans have built this corrupt Supreme Court and Democrats will tear it down, freeing us all. There is no “bipartisan” fix for the damage Republicans have inflicted in broad daylight.
Democrats should learn from how they were screwed by independent redistricting commissions. Creating a level playing field isn’t the answer here. Democrats must specifically neutralize right-wing control over the judicial branch. We’re long past Joe Biden’s almost farcical Presidential Commission on the Supreme Court of the United States. We don’t need a commission to discuss the gun pointed at our heads. We need to disarm our opponents and fight back. My concern is that the Democratic Party, as it currently exists, will always struggle to embrace a total war position against the GOP.
I take the usual Dem response of using generalities to be their way of retaining flexibility. But I like the idea of just adding 100 justices to fuck up this Court that has gotten out of hand. My more radical approach is just to announce you’ve decided the Court is no longer legitimate and you will now be treating it as a merely advisory body. No more judicial review. Sorry Alito, but you broke it. The only real power the Court ever had was this sense from the other government bodies that it was the final say on the law. SCOTUS gave up any right to say on the law by leaning into corruption for the sake of Trump. It’s insane now to treat the Court as anything other than contempt.
It’s over, folks, another institution that was imperfect but ultimately sullied by Trump.
One thing to eliminate is the sense of personal power and mission that SCOTUS judges have. I would do it as follows: SCOTUS is made up of 15 randomly selected circuit judges serving in three classes of five, so that five are replaced every X years. Each case is heard by a random selection of 7 from the 15. Removing the possibility of a personal program should reorient them to the law. Also: it should be a hard, fixed litmus test for any Democratic support for any judge nominee that the nominee forswear ever countenancing originalism as a valid method of construing the constitution. The elimination of originalism from public life should be on the platform.