I’ve been working on this post on and off for weeks, trying to decide if advocating for court reform sounds too pie-in-the-sky. Since the overturn of Roe, which for the first time ever removed a Constitutionally protected right from Americans—with promises of more such decimation of established rights to follow—I’ve been eager to complete it.
This week, the radical court majority’s beyond the beyond rulings moved my thinking from “too pie-in-the-sky” to “Do or die.”
Sadly, I am in the company of some of our nation’s most highly respected thinkers. Historian Heather Cox Richardson’s tweet says it all. This court has gone rogue, and Congress must stop it before it destroys our country. See her Letters From an American, June 30, for an excellent, detailed analysis.
Democrats have long been shy about court reform—ever since President Franklin D. Roosevelt tried to expand the Supreme Court to ensure his programs would get through. He suffered a setback, and Roosevelt’s attempt was historically marked as a radical move. “Packing the Court” has lingered as a political no-no.
But he did win over two justices, thus making the idea unnecessary.
No chance of that happening with this bunch!
While the Democrats have been shy, the Republicans have been active, with an effort that began in earnest in 1971. Alarmed by regulations to protect consumers and by the growth of the labor movement—and their impact on businesses’ bottom line, Lewis Powell wrote a confidential memo urging a vast, coordinated, well-funded effort involving the cultivation of political power that “must be used aggressively and with determination—without embarrassment and without the reluctance which has been so characteristic of American business.” Embarrassment? Reluctance? Quaint to conjure that as the captains of industry’s approach to life.
Powell was appointed a Supreme Court justice by President Richard Nixon shortly thereafter.
The effort Powell called for has been playing out for decades. Earlier this week, I reblogged one of my posts from two years ago that contains a terrific video in which Sen. Sheldon Whitehouse (Dem-RI) takes us through the making of today’s court by dark money interests. Whitehouse is consistently strong on these court issues; on this occasion, he was addressing Supreme Court nominee Amy Coney Barrett at her confirmation hearings.
In the Twitterverse, which is home to a number of serious legal scholars and historians, the hashtags “Expand the Court” and “Unpack the Court” are gaining steam. Why “Unpack”? Because this court is the result of a metaphorical suitcase filled with laundered dirty money that has already been packed by wily ole Mitch McConnell: first by denying President Obama’s nominee, Merrick Garland, a Senate hearing 11 months before the election (‘’too close,” McConnell said); then by rushing through Amy Coney Barrett’s nomination just weeks before the 2020 election. Impervious to the hypocrisy he demonstrated, McConnell simply did it because he could.
That’s also the explanation for the Supreme Court’s brazen rulings.
After this week’s ignominious exhibition of judicial hubris and made-up-out-of-whole-cloth judicial theorizing, the calls are growing to “do something” about a Supreme Court majority that’s “gone rogue.” Its decisions are, literally, dangerous to our health—as individuals and as a nation.
Consider just this session’s closing salvos:
—Struck down Roe v Wade, removing a Constitutional right that has protected women for nearly 50 years, ostensibly passing the decision to the states, while Republican state legislatures fall all over themselves to make it more difficult for women to even go out of state, and the national Republican leaders promise a federal law.
Post-Roe America promises to be an even more savage place than pre-Roe America, with criminalization of both physicians and patients, and women dying not only of botched abortions, but also of ectopic pregnancies and miscarriages that physicians will be afraid to treat for fear of jail time.
We are already hearing of 12-year-old girls, raped by their fathers or uncles, who are being forced to bear their rapists’ babies. This is not hyperbole. Here is a New Yorker essay that details what is already happening and will get worse.
—Expanded access to guns, just as the public’s fear and anger about our gun safety crisis had even persuaded wily ole Mitch to go along with the Democratic majority on modest gun safety legislation.
—Further eroded the separation of church and state with rulings that support prayer in public schools and force a state—Maine—to fund religious education for two schools that were overtly discriminatory.
These theocratic rulings would surely horrify the Constitution’s founders, who were rather fond of the separation of church and state. Justice Breyer warned that the ruling would heighten the “religious strife” that the Constitution’s religious clauses “were designed to prevent.”
—Endangers the future of our planet by limiting the Environmental Protection Agency’s ability to regulate greenhouse gas emissions; this ruling will form the basis for additional anti-regulation cases in an ongoing assault on the “Administrative State”—that is, the federal government’s ability to function to protect the safety of its citizens.
The court took the case even though they knew the EPA had abandoned the rules that were challenged in the lawsuit. Justice Roberts wrote about a “major questions” doctrine that puzzles both court watchers and his fellow jurists in the minority.
For the dissent, Justice Elena Kagan concluded:
“The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”
Not incidentally, Kagan also noted that for people who consider themselves “originalists” adhering to the Constitution, they’re playing fast and loose with any standard.
“The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions’ doctrine magically appear as get-out-of-text free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”
There were also bad rulings that will overcome protections of tribal sovereignty from state intrusions, the protections afforded the accused via Miranda rights, and the ability to sue border agents for violent acts. For details, see Today’s Edition Newsletter, July 1, 2022, and its links.
And the worst is yet to come. On the docket for the next term is democracy itself, in a case that would give state legislatures complete authority to decide elections—even if the Courts ruled their actions unconstitutional. The Independent State Legislature (ISL) is the discredited Constitutional theory being pushed by John Eastman to justify the fake electors scheme to invalidate President Biden’s 2020 win. It’s based on a misreading of a minority opinion in Bush v. Gore, the case that gave the presidency to George Bush in 2000.
It strikes me that just as Donald Trump’s Big Lie was and is deliberately designed to weaken Americans’ beliefs in the sanctity of our electoral system, the radical Supreme Court majority is rapidly succeeding in doing the same to our judicial system.
Clarence Thomas’s wife Ginni was an Insurrectionist, and he and his colleagues seem have have bought into the Big Lie—or at least they find it a convenient way to shape the country they want.
And the term “willful ignorance”—often suggested to describe Trump’s knowledge that his claims of fraud are themselves fraudulent—applies to the Court as well.
Dahlia Lithwick, a journalist who’s long monitored the court, with humor tempered by reverence for the institution, showed neither humor nor reverence in writing about how serious all this is when she wrote in Slate:
“Those arguing that the brand-new jurisprudence emerging this week is markedly more cruel, more overtly theological, and more contemptuous of the regulatory state are all correct.
“But it also reflects a new kind of lawlessness that is frighteningly untethered from fact, science, and objectivity—untethered in ways that should frighten anyone who depends on the court for truth above all things.”
This radical Court majority, appointed by presidents who won a minority of the popular vote, has been making rulings that are in opposition to the vast majority of Americans’ wishes and beliefs.
So it’s time to reform/re-form the Court.
There is actually a good-government reason to expand the Court.
The Constitution—that document so revered by the current majority that they want to take us back 230 years when it suits their purposes—gives Congress the power to determine how many justices sit on the Supreme Court. Over time, the number has varied from a low of five to a high of ten. The current number of nine justices has held steady since 1869, when there were nine circuits funneling cases to the Court.
All the federal courts are widely regarded as overburdened. There have been bipartisan discussions about adding judges to the district courts. The nine current Supreme Court Justices handle cases funneled to them from 13 circuit courts, including the DC Appellate Court.
Thus, the case can—and I believe should—be made that we need four additional Justices to efficiently do the nation’s judicial work.
Obviously, such a move would have to be made only if we have a Democratic president and firm majorities in Congress. President Biden’s call for bypassing the filibuster to secure reproductive rights holds promise. We must give him solid majorities in the House and Senate.
Heather Cox Richardson and others are contemplating additional moves that we, the public, can make. I’ll be following them closely.
It’ll be quite the fight, as the battle to make the Supreme Court an arm of the American oligarchs has been long and meticulous. But it is every bit as important to our struggling democracy as anything else I can imagine.