The hasty affirmation of justice Amy Coney Barrett has, for the first time in decades, made the Democrats seriously consider progressive reforms to the Supreme Court. Today Conservatives have a 6-3 majority in the court, illegally developed by Donald Trump and Mitch McConnell. This stark reality has radicalized the grassroots. It has even got some Democratic senators to use their power to achieve profound structural change as opposed to a cosmetic bipartisan renovation.
Unfortunately, these senators are likely to be in the minority until at least early 2023. As long as McConnell remains the majority leader, he’s unlikely to allow reform (or law or democracy) in the Senate. But the Democrats must continue planning for the day they have enough seats in the Chamber to implement a plan that will soften Republican rule over the Supreme Court.
The simplest solution to the Republicans stranglehold is to expand the court or increase the number of judges. This could be achieved through a simple act of legislation and would be vaccinated against challenging the Constitution as this has been done a number of times before. I mean what would Chief Justice John Roberts do – lock the doors? The Supreme Court has no army. So if he doesn’t have ninja skills that I don’t know about, there’s little he can do when new colleagues show up for work.
The problem is that expanding the court to people who don’t know how the Constitution works sounds radical. To people who don’t know that increasing the number of judges is the best way to avoid the mere partisan struggle that occurs every time one of the nine judges dies or retires, it sounds political. This has spurred some Democrats to push for alternative reforms that sound humble but would in fact be much more difficult to implement as they would require a constitutional revamp.
The most popular of these supposedly sober but fundamentally unlikely proposals are the deadline restrictions, which were significantly increased in September by representatives Ro Khanna, Joe Kennedy III and Don Beyer introduced an invoice limit the nine judges to a term of 18 years. Her proposal would mean that each president would appoint at least two judges to the court for every four years in office. The idea is that this would make the court more responsive to electoral politics and end the current practice of letting judges wield power for 30 or 40 years.
Term restrictions are also significantly supported across party lines. Fix the Court, a group that has been promoting this idea for a while, has noticed 77 percent of Americans prefer some form of term limitation. The problem is, they’re likely to be unconstitutional. The constitution says that judges serve “behaved well,” which functionally means that they serve for life without impeachment. Proponents of tenure limits argue that they could get around this by referring temporary judges to federal courts. You’d still be able to serve for life, just not quite in the Supreme Court.
It’s a neat trick that I think is constitutional. Unfortunately, I’m not on the Supreme Court. The nine people are unlikely to agree to be dismissed by the country’s highest court – especially the five archconservative judges who claim to be strictly guided by the texts of the constitution and the messages of the Ouija board of directors from James Madison. The proposal would be dead upon arrival at the Republican-controlled court that the people are trying to reform.
Realizing this reality has taken some Democrats down a more complicated path: removing the jurisdiction. It comes as a surprise to some people to learn that the Supreme Court’s power to declare acts of Congress unconstitutional is not in the Constitution. That power, known as judicial review, was invoked by the court in the landmark 1803 case Marbury versus Madisonand Congress never stopped it.
A solution to illegitimate control of Republicans proposed by Ryan Cooper in The week and Jamelle Bouie in The New York TimesAmong other things, it would be for a democratically controlled Congress to pass laws that deprive the courts of power to rule on the constitutionality of certain classes of laws. The Constitution lists limited categories of cases for which the Supreme Court originally has jurisdiction – those that you can take to the Supreme Court without first going through the lower courts. For everything else, the Constitution grants the Supreme Court appeals review, which Congress can technically limit.
But there is a problem: even if we assume that Congress can limit the types of cases the Supreme Court considers, a court that does not act is just as detrimental to the rights as one that acts too much. Look at the 2018 Gerrymandering case Gill v. Whitfordin which the court ruled that it did not have the power to fight Gerrymandering, which favored the Republicans. That decision alone ensures that GOP-controlled state lawmakers can get their candidates into office despite the will of the electorate if we redraw the boundaries of the Congressional District.
This shouldn’t come as a surprise. Deprivation of jurisdiction is a republican idea. During George W. Bush’s tenure, the GOP-controlled House voted to exclude stupid allegiance laws from judicial review. Additionally, vulnerable communities typically need judicial review as we cannot always predict what evils Republicans will think of next.
What is really wild for me is that the dispossession of jurisdictions is portrayed as a kind of moderate alternative to the “radicalism” of court enlargement. Ending or restricting the judicial review would mean changing the way our control system worked from the earliest days in the country. An extension of the court would include changing the number of seats on a body that has already been changed several times. Removing justice would mean reducing the power of the Supreme Court because we don’t like the way it uses its power. Expanding the court would mean minimizing the importance of a single Supreme Court Justice so that we don’t have to go on the mattresses every time one of them resigns or dies.
The extension of the court is constitutional: it was carried out before. It’s simple: it could be done through simple legislation. It’s comprehensive: it could depoliticize the Senate’s confirmation process and open the door to other changes like ethics reform. And it’s moderate: it wouldn’t mean reinventing the system of checks and balances.
But I may have to wait a while to bring this point up again. The Republican Supreme Court will be secured at least until early 2023. On the other hand, the court is poised to make some hideous decisions in the next few years – and that almost guarantees that the idea of expanding the court will reappear.