Discover more from Discourse Blog
How to Destroy the Supreme Court
For there to be real progress in this country, the court as it currently exists must end.
All week long during her Supreme Court nomination hearing, Judge Amy Coney Barrett systematically dodged questions about how she’d rule on particular cases.
Asked by Republican Senate Judiciary Committee chairman Lindsey Graham on the first day of questioning if she would listen to “both sides” on litigation involving an anti-abortion bill Graham has proposed, Barrett responded: “Of course. I’ll do that in every case.”
Anyone who knows anything about Barrett—a group that includes every member of the Judiciary Committee as well as Barrett herself—knows that this is almost certainly not true. If it was, she wouldn't have been nominated. The Supreme Court nominee is well-known for being an ultraconservative Catholic, and she signed a statement opposing “abortion on demand” in 2006 as a law professor. And while she hasn’t heard any abortion cases in her three years on the Court of Appeals, there’s a reason why fanatical anti-choice Sen. Josh Hawley pronounced himself satisfied with her nomination even though she didn’t technically meet his demand that any Supreme Court nominee explicitly say that Roe v. Wade was wrongly decided.
But even though everyone knows all these things, Barrett, like every other Supreme Court nominee, is expected to (and does) pretend that she’s a blank slate of judicial impartiality and that someone’s judicial philosophy can be wholly separated from their personal politics. This is clearly nonsense. On abortion and other issues such as labor rights, racial justice, and the environment, Barrett’s devotion to the judicial doctrine of originalism—like that of her mentor, the late Antonin Scalia—is a product of her reactionary politics, not the other way around. And she’s not alone—the justices currently on the Supreme Court are not only guided by their own politics and self-interest, but behave like politicians as well, particularly Chief Justice John Roberts.
This is not a new development, though it’s intensified in recent years. “The Supreme Court has long been a political battle,” UCLA law professor Adam Winkler told Discourse Blog in a recent interview. “One of the first things Thomas Jefferson did was cancel the Supreme Court’s next term. He wouldn’t let them meet. Partisan politics over the court has been going on since early America.”
The fact that Barrett’s nomination and the circumstances surrounding it are so nakedly political, however, can ultimately be a good thing. Because for the left, one of the biggest obstacles to fundamental change in America is the staggering power of the Supreme Court—a power few other high courts in the rest of the world have, and one derived in large part from the mythical idea that the court and its inhabitants occupy an exalted space outside normal politics.
This has long been the case, but the death of Ruth Bader Ginsburg and her imminent replacement by Barrett has underscored this reality as never before. Decades of progress hang in the balance because of one woman’s death and another woman’s job promotion—and, as things stand, there’s nothing anyone can do about it. We can’t go on like this.
“The court is not this apolitical and untouchable body and institution. It’s a political branch.” — Rhiannon Hamam
Simply put, for there to be anything like real progress in this country, the court as it currently exists must be destroyed. Its power must be curbed. Its authority must be undermined. And the fate of the country should not hang in the balance whenever its composition changes.
Several different proposals for reining in the court have been floated—from court-packing to a more moderate proposal from House Democrats to introduce term limits and give every president two justices on the court per term. Whatever your views on these individual proposals, almost any of them would be better than what we have now—and, ideally, they would not only halt the damage that has already been caused by the Roberts Court, but also contribute to the long-term project of undermining the court and ending the aura surrounding it once and for all.
“We can change [the Supreme Court] when the political moment requires,” Rhiannon Hamam, a public defender in Texas and co-host of the legal podcast 5-4, told Discourse Blog. “It’s not radical, it’s something our legal system and the constitution already conceive of and has happened in the past. The court is not this apolitical and untouchable body and institution. It’s a political branch.”
Ruth Bader Ginsburg’s death and Barrett’s nomination forced a lot of liberals who were otherwise skeptical of changing the structure or number of justices on the Supreme Court to face the music, but the idea has been percolating for a while now. There have been multiple proposals to increase the number of justices on the Supreme Court, which is a decision explicitly entrusted to Congress, though it hasn’t used the power since Reconstruction.
There was Democratic presidential candidate Pete Buttigieg’s plan for 15 justices with five “apolitical” justices chosen by five Democratic and five Republican justices. Winkler has suggested term limits, or increasing the Supreme Court’s size and changing the way it does business so substantially that it effectively mimics the appellate courts, where three-judge panels are randomly assigned to cases.
“I think the most important thing is that if you reform the court, it should be genuinely reformed, not flipped ideologically. I don’t think [court-packing] fundamentally reforms the court,” Winkler said. “Expanding the court to 27 and having nine justices chosen at random [to decide a case], that makes each particular confirmation much less weighty. It would also make it unlikely that they would rule on the exact same issues.”
After Ginsburg’s death last month, a trio of House Democrats—Reps. Ro Khanna, Don Beyer, and Joe Kennedy—introduced a bill that would establish 18-year term limits for Supreme Court justices, after which time they’d rotate into senior judge status on the lower courts. (This is already allowed, and Sandra Day O’Connor and David Souter have done so.) Every president would also create an appointment process for the Supreme Court in every odd year, guaranteeing that every two-term president gets four justices on the court. “It doesn’t make sense to have these lifetime appointments that skew the court,” Beyer told Discourse Blog.
Beyer, however, characterized the plan as the compromise position. “I actually think this is among the more conservative proposals,” Beyer said. “They don’t have to curry political favor, they can do what they think is right, so they still have that advantage. But we’re not also stuck with them for a lifetime.”
“I haven’t had a chance to make this argument with my GOP friends, but I think this is party-neutral in the middle and long term,” Beyer added. “The sword cuts both ways...if we passed this and signed this into law and Trump wins, he would get two more justices.”
Beyer's right; his plan is party-neutral in the long-term. The Democrats would need at least two terms in order to regain a liberal majority on the court—the first two justices to be forced into senior status would be Clarence Thomas and Stephen Breyer, which with Barrett's confirmation would still give conservatives a 5-4 majority. But that assumes that the GOP has an interest in party-neutral reforms or strengthening institutions. They don't, and why should they? The current system is working just fine for them.
Relentless GOP opposition to anything that changes the judiciary, however, isn't a reason not to do reform, whether it comes in the form of Khanna and Beyer's plan, holding judges to a code of ethics, packing the court or otherwise.
“Something like expanding the court and packing should definitely happen,” Hamam said, “but that should happen in conjunction with other court reform options that will further make the institution of the Supreme Court more beholden to democratic values and democracy.”
The main argument against court-packing is that the political ramifications are too dire. As historian Jeff Shesol wrote for the New Republic earlier this week, Franklin Delano Roosevelt’s attempt to expand the court’s membership in order to override a conservative majority’s opposition to the New Deal came with a significant political cost beyond a Democratic wipeout in the 1938 midterm elections that saw the Republicans pick up over 70 seats in the House and seven seats in the Senate, mostly from allies of Roosevelt; it drove a stake in the heart of the union of anti-labor Southern Democrats and liberals that the New Deal coalition never recovered.
Considering a hypothetical Democratic Senate would have extremely slim margins and also the problem of a pandemic and crushing recession on its hands, Shesol wrote, Biden “needs to avoid alienating Democratic senators like Joe Manchin of West Virginia with a costly fight over the court.”
“It doesn’t make sense to have these lifetime appointments that skew the court.” — Rep. Don Beyer
But while Roosevelt suffered a blow politically, the goal of the court-packing—to stop the court from striking down New Deal laws—was largely a success. After Roosevelt pushed for the court packing plan, the court began striking a much more conciliatory tone to save its own skin. Otherwise, laws like the NLRA and Fair Labor Standards Act would have died in their cradle. The lesson: with enough of a mandate, even the threat of diluting the power of the current Supreme Court justices might be enough to force even a 6-3 conservative court to make some compromises on legislation that’s broadly supported by the public.
The situation is also radically different than it was in the 1930s. While Shesol points out that Biden will have nowhere close to the near 60-vote majority Roosevelt enjoyed in the Senate, the Democratic Party today also doesn’t rely on a large right-wing social conservative bloc to operate; senators like Manchin and Kyrsten Sinema hold outsized sway, but their influence could be diluted if the party has a particularly good night and picks up a couple of extra seats.
Additionally, Senate Minority Leader Chuck Schumer has said that “nothing is off the table” if Republicans fill Ginsburg’s seat. If Democrats win the Senate, Schumer’s ability to whip votes and actually lead the party is highly questionable, but at least he’s threatening to go big and has a heartbeat—Roosevelt’s best ally on the plan, Senate Majority Leader Joseph T. Robinson, straight up died before he could get it through Congress.
While liberals fear political retribution from a perceived power grab, it’s also easy to see why court-packing would raise some suspicion on the left. For one thing, the Supreme Court is an inherently anti-democratic institution; the only body not elected by the voters has the final say on the laws governing them. Furthermore, the court has historically been a key tool of reaction in America, save for a few decades where it wasn’t outwardly hostile to civil rights for Black people and women.
More fundamental changes, like ending judicial review or abolishing the Supreme Court, would effectively kill the judiciary’s veto power over democratic will. But this isn’t as alien as it might seem at first. Few other countries have a court that plays such an outsized role in politics, and several, including the United Kingdom and the Netherlands, don’t grant their high courts the power of judicial review at all.
But ending judicial review or killing the court altogether has such little political support right now that it’s hard to imagine either of those happening unless the Constitution itself were to be rewritten, or until the culmination of a full-fledged revolutionary conflict. And so abandoning the court fight while waiting for something better (or much worse) to come along isn’t an option, Hamam said.
“I think we on the left sometimes get caught up in something like abolishing the Supreme Court and abolishing judicial review,” she told Discourse Blog. “If we’re not doing something like packing or reforming the Supreme Court in the system and structure we have now, we lose even more political power even further. And that makes whatever the broad leftist goals are even harder.”
A Supreme Court that prioritizes equality and the well-being of the working-class could also help create the sort of conditions necessary for more involvement in the democratic process. “Any power built from the left in the short term is a good thing,” Hamam added. “Anyone who has a better paying job and healthcare...all of these facets of daily life and society, those are all going to be good things and help us combat whatever the Republicans would want to do in return.”
There is no real silver lining here. Barrett will almost undoubtedly get confirmed, and a 6-3 conservative court will launch even more of a full-throated attack on labor, choice, civil rights, and the environment while severing any and all checks on corporate power and expanding the definition of religious liberty to include anything that makes Timothy Dolan uncomfortable.
There is also no guarantee that Biden and a unified Democrat government would even have the stomach to change the court. Biden said this week that, while he was "not a fan" of court-packing, he hasn't made his mind up completely. If he and his fellow Democrats are serious about protecting any progressive gains made in the last century or so, they need to understand that there's no other choice but court reform.
And if that fight is highly politicized, that’s just a bonus. With each political battle involving the Supreme Court, more and more of its false aura of objectivity is stripped away. And the more the public realizes that the judiciary is just as political as the other two branches of government—and that the place it occupies is not something mandated by God, but rather something that was created by a corrupt system and can be torn down—the sooner it will come around to considering the question of what its purpose is or why we need it at all.