FIXING THE RADICAL, REACTIONARY SUPREME COURT
The Supreme Court’s rulings over the last year have clearly shown that the six radical, reactionary justices [1](Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) are not guided by any coherent legal or judicial reasoning. Their decisions are driven by the outcomes they desire based on their ideological and political beliefs.They will ignore precedents, facts, and history that don’t align with the outcomes they want to achieve.
(Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.)
These six justices’ rulings disregard the rule of law; they are making up their own rules, principles, and rationales as they see fit on a case-by-case basis. They are not consistently applying the law so current and future results are predictable. They are also not enforcing the law equally on all persons and institutions. [2] (See this previous post for more detail.)
It appears that the six reactionary justices intend to return us to pre-1930 America – a patriarchal (and even misogynistic), racist, xenophobic, and conservative Christian society. It is a plutocracy (i.e., where wealthy elites rule), not a democracy. In it businesses and the private sector are dominant and government does little to regulate them – at least for businesses run by executives who are in favor with those in elected or judicial offices. [3]
There are multiple ways to move the Supreme Court back toward upholding the rule of law and our democracy. None of them are quick and easy. They all rely on either increasing the number of Democratic Senators (to a solid majority that would limit or overcome the filibuster’s requirement for 60 votes) or on at least some Republican Senators breaking with their party’s current radical, reactionary agenda.
First, it’s important to note that many of the Court’s radical, reactionary rulings could effectively be overturned by passing legislation. Voting rights, same-sex marriage and other LGBTQ+ rights, interracial marriage, and access to contraception are all examples of issues where the passage of legislation could be very effective. Others, such as limiting access to guns, clarifying separation of church and state, and limiting money in political campaigns, would require constitutional amendments. As noted above, achieving these changes would require an increase in the Democratic majority in Congress or changed behavior from Republicans.
In terms of fixing the Supreme Court itself, the most straightforward and potentially near-term approach would be to increase the size of the Court. The size of the Court has been changed by Congress seven times in the past (it’s had between five and ten justices), so this is not unprecedented. In addition, Republicans and Senate leader Mitch McConnell in 2016 informally reduced the size of the Court to from nine to eight for roughly a year by refusing to consider President Obama’s nominee for a vacancy.
A prominent proposal is to add four justices to the Court. This stems from the fact the Republicans, led by Senator Mitch McConnell, denied President Obama an appointment and also rammed through confirmation of a justice days before the 2020 election that President Trump lost. The votes of these two justices would be offset by two other justices and two additional justices would be added to reflect the appointments Presidents Obama and Biden should have gotten to make. (Note that these two appointments by Trump, and the one other he made, are the only three Supreme Court justices ever appointed by a president who lost the popular vote and who were confirmed by Senators who represented less than half the country’s population (44.7% in 2016 and 48.0% in 2018). This is possible because every state, regardless of population, gets two Senators.)
The Judiciary Act of 2021 has been introduced in Congress to add four seats to the Supreme Court “to restore balance, integrity, and independence to the extremist Court that has been hijacked, politicized, and delegitimized by Republicans.” [4] It has 60 co-sponsors.
Other proposals for increasing the number of justices have been put forward including one where there would be 15 justices: five Republicans, five Democrats, and five others chosen by the ten partisan justices. This would mean that the balance of power would be held by the five justices acceptable to both parties’ justices, which would presumably have a moderating and stabilizing effect. [5]
Another reform proposal would have the nine Supreme Court justices selected randomly from the roughly 170 federal appeals court judges. They would serve for a defined period that might be as short as two weeks, and then another random group of nine Supreme Court justices would be chosen.
Term limits are a way to reduce gamesmanship by Congress and improve the likelihood of adherence to the rule of law. With an 18-year term limit and staggered terms, a justice would be appointed every two years and two justices would be appointed in every presidential term.
There are a variety of other ways to improve the likelihood of adherence to the rule of law and to reduce the volatility of the effects of Supreme Court rulings. One would be to require a super-majority vote (say 7 to 2) to overturn precedents that have been in place for more than a certain number of years or that have been affirmed by a certain number of other rulings by the Supreme Court and other courts. Or a super majority vote could be required to overturn recently passed laws (e.g., the Voting Rights Act) or executive branch regulations.
Congress could also give itself the power to expedite laws overturning or rejecting Supreme Court rulings, as they have done for executive branch regulations through the Congressional Review Act. Congress could also limit the jurisdiction of the Supreme Court so it can’t overrule certain laws or regulations.
I encourage to you contact President Biden and your Representative and Senators in Congress. Tell them you support action to restrain the radical, reactionary justices on the Supreme Court and to overturn their rulings. Ask them to support the Judiciary Act of 2021, which would increase the size of the Supreme Court by four justices to correct the Court’s imbalance due to the two appointments stolen by Senate Republicans.
You can email President Biden at http://www.whitehouse.gov/contact/submit-questions-and-comments or you can call the White House comment line at 202-456-1111 or the switchboard at 202-456-1414.
You can find contact information for your U.S. Representative at http://www.house.gov/representatives/find/ and for your U.S. Senators at http://www.senate.gov/general/contact_information/senators_cfm.cfm.
[1] See this previous post for an explanation of the appropriateness of calling these six justices radical and reactionary.
[2] Millhiser, I., 7/9/22, “The post-legal Supreme Court,” Vox (https://www.vox.com/23180634/supreme-court-rule-of-law-abortion-voting-rights-guns-epa)
[3] Cox Richardson, H., 4/6/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/april-6-2022)
[4] Senator Elizabeth Warren, 12/15/21, “Judiciary Act of 2021”, (https://www.warren.senate.gov/newsroom/press-releases/in-op-ed-senator-warren-calls-for-supreme-court-expansion-to-protect-democracy-and-restore-independent-judiciary)
[5] Millhiser, I., 7/2/22, “10 ways to fix a broken Supreme Court,” Vox (https://www.vox.com/23186373/supreme-court-packing-roe-wade-voting-rights-jurisdiction-stripping)