There is a lot of talk about what to do to repair the damage done to the Supreme Court by the Republican Party. One idea is to reduce the number of justices to six, casting aside the three Trump appointees. There is a major problem with this. Last on, first off does not work with lifetime federal judicial appointments. The only times the size of the court was reduced in the past—in 1800 and 1866—there was either a vacancy on the court that was eliminated, or the number of justices was reduced through attrition and non-filling of vacancies. The only constitutional way to remove a justice from the court is through impeachment (which we all know will never work as long as there are 34 GOP senators, and which has failed in the past). Which also means that impeaching, say, Kavanaugh, for perjury during his confirmation hearings, while probably entirely warranted, is a non-starter.
We Democrats are frankly not very good at making a case for ourselves. As a litigator, it was my job to make the best case for my clients. So, here goes.
Just FYI (and for what it’s worth), I am a lawyer and a member of the Bar of the Supreme Court of the United States.
Let’s begin with an important statistic, a piece of evidence , if you will: GOP presidents have made 15 of the last 19 SCOTUS appointments. And let’s look at a subset of that mathematical evidence: five of those 15 have been appointed by presidents who lost the popular vote and were approved by senators representing a minority of the people of the United States. (What this means, numerically, is that if the court were expanded to, say, 15 justices, a Democratic president who won the popular vote would still have only appointed 10 of the last 25 justices!) The GOP has gamed the system by holding vacancies open for Trump—and not only Scalia’s seat, but over 100 lower court vacancies, some of which were filled by people the American Bar Association (not exactly a liberal bastion) deemed to be “unqualified.” The GOP has undermined the legitimacy of the court and that legitimacy must be restored.
There was a time—not that long ago—when the approaches of justices to constitutional issues changed, matured, and deepened over time. Earl Warren was a prime example of that: he went from being known as a “law and order” Republican to the head of the most liberal—and I would argue most legally significant—SCOTUS bench in our history. Warren, for example, understood the importance of the court handing down the decision in Brown v. Board of Education unanimously, and he worked hard to ensure that the decision was, in fact, unanimous. William Brennan, probably the most influential liberal justice on that court, was an Eisenhower appointee. Harry Blackmun, appointed as a conservative by Richard Nixon, authored the opinion in Roe v. Wade and became increasingly liberal during his tenure. John Paul Stevens, appointed by Ford, moved from conservatism to being one of the most liberal justices on the court. David Souter, appointed with expectation that he would be a conservative, first moved to the center and then to the liberal wing of the court.
All these justices saw the potential effect that their decisions in the cases before them would have on the lives of real people, and that openness and, dare I say it, empathy, made them take the side of real people. And it is stories like these, of thoughtful conservatives and conservative legal scholars growing and developing into liberal justices, that has made the GOP so determined to ensure that only right-wing ideologues are seated on the court. Has Clarence Thomas grown and developed since his appointment? (Hell, he’s hardly participated in oral arguments.) Did William Rehnquist? Has Samuel Alito? No, no, and no. Will Gorsuch, Kavanaugh, and Barrett grow and mature? Don’t bet the ranch.
Our unrelenting message must be that the GOP has, by its own insistence on the appointment of ideologues rather than open-minded jurists, undermined the legitimacy of SCOTUS; that the GOP has, by its manipulation of the appointment process for its own political ends, undermined the legitimacy of SCOTUS; and that this GOP “president” has, by ignoring the ruling of SCOTUS requiring the re-opening of registration for DACA, undermined the legitimacy (and authority) of SCOTUS. By these actions, the GOP has undermined the third branch of government, an independent judiciary, that is established in the Constitution that they pretend (word choice very intentional) to revere. It is up to us to point all this out, over and over and over again if necessary. It is up to us to make the case that the GOP has destroyed the impartiality of the third branch of our government. It is up to us to tell all comers that it is high time to rectify the destruction of the independent judiciary, and that we must act NOW.
Democrats must get this message out there. The court, through the manipulations and political power plays of the GOP, is not—and the GOP does not intend it to be—a neutral arbiter. Despite John Roberts’ patently false claim that he will only call balls and strikes, the court is not a fair forum for the important cases it decides—just look at the shadow docket, in which unsigned per curiam orders have been used to decide, without opinion, cases affecting the right to vote and the way in which votes are counted. (Thank God for Sotomayor calling out the majority, even though, since they have no shame, it does not have any effect on their exercise of raw judicial power. At least we know what’s going on.)
These “conservative” justices have no problems with the worst, most abusive forms of judicial activism, like reading an entire clause or two out of the Second Amendment, or finding that corporations are “persons” and are entitled to protect their First Amendment rights and their political and religious beliefs, or finding that the Florida Supreme Court’s interpretation of Florida law as applied to a federal election was unconstitutional (Bush v. Gore, which they also tried to make into a non-precedent). They have no problem “distinguishing” precedents into meaninglessness—overruling them de facto if not de jure. The vast majority of cases decided by this court exalt the powerful, the white, law enforcement, or the religiously conservative over the poor, the disadvantaged, those who are members of minorities, the LGBTQ community, and those accused of crimes.
And we need to be clear that time will not redress this problem anytime soon, which is why we must act now.
Justices, with proper health care (which they have as federal employees) can serve well into their eighties. GOP presidents and senators have installed increasingly younger justices on the court. Without court expansion, it is unlikely that Biden will get more than one appointment during a 2021-2025 presidential term. That is because the only justice over 80 is Stephen Breyer, at 82. That one appointment will not affect the 6-3 conservative majority on the court, because a “liberal” would be replacing a “liberal.”
If the other justices serve until Breyer’s current age, here is when their seats would turn over:
- Clarence Thomas, at 72, would not leave the court until 2030.
- Alito, at 70, would depart in 2032.
- Sotomayor, at 66, would leave in 2036.
- Roberts, at 65, would leave in 2037.
- Kagan, at 60, would leave in 2042.
- Kavanaugh, at 55, would leave in 2047.
- Gorsuch, at 53, would leave in 2049.
- Barrett, at 48, would not leave the bench until 2054.
If we leave the number of seats at nine, this means that, absent unforeseen early deaths of some of the conservative justices, there is not a realistic opportunity for a change from a conservative-dominated court to a more liberal court until—are you ready for it?—2032! And that is based on the assumption that Democratic presidents would be in office and control the Senate when every single vacancy arises between now and then. That’s 12 more years of a conservative-dominated court—and that’s a best-case scenario. Twelve years of a court striking down statutes ensuring that people have the right to vote. Twelve more years of a court striking down laws that give access to health care. Twelve more years of a court striking down the very concept of reproductive rights. Twelve more years of a court giving a pass to corporations, underhanded prosecutors, and violent police officers. Twelve more years of a court allowing the GOP to gerrymander the hell out of every single district, state or federal, that they can.
The court, as an institution, must be expanded in order to reduce the importance and power of the constitutional interpretation mechanisms of individual justices. Sure, if there are 15 justices there will be a few 8-7 decisions, but there will be far, far fewer of them than there are 5-4 decisions currently. (Eighty-four of which in the past decade have favored corporations, limiting their liability and responsibility for their actions.)
Having argued cases for many years, before juries over the selection of which I had limited power, I believe that a majority of Americans can and will understand what is going on if it is clearly and effectively communicated to them. I believe that a majority would respond to this rationale and support the expansion of the court. (Trumpies won’t, but they are legal lost causes.) We Democrats need to do what the GOP does: develop talking points and relentlessly pound them whenever the chance arises—or, being even more like the GOP, pounding them even when they are not responsive to a question.
This is a case we must make to the jury of the American public, and it is a case we must win if our civil rights are to be preserved. It is a case we must win to end minority rule in this country. It is a case we must win to ensure the survival of our democracy through the upholding, indeed expansion, of voting rights.
Am I angry about what has been done to SCOTUS? Damn right, I’m angry. And we need to get others to share that anger, especially as each new decision chipping away at (or blasting away) our rights is handed down.
Take no prisoners.