We’ve just seen one of the worst weeks in the 230-year-plus history of the U.S. Supreme Court. And that is really saying something, when you think about its other low points including the 1857 Dred Scott ruling, which held Black people as inferior and denied them U.S. citizenship, or 1896′s Plessy v. Ferguson that allowed segregation, or the High Court’s more recent jags that have prized corporate citizenship and eroded voting rights.
And yet it is becoming increasingly difficult to have faith in the Supreme Court’s independence — and, thus, its legitimacy — after a day that should be known as Black Monday, which was capped by new, hastily confirmed Justice Amy Coney Barrett’s preening appearance with the president who appointed her, Donald Trump, on his increasingly Mussolini-scented White House balcony. Barrett’s showcasing at 1600 Pennsylvania Avenue wasn’t legally necessary — Chief Justice John Roberts performed her actual swearing-in the next day — but amounted to a right-before-the-election free campaign ad for the president who appointed her and who has openly declared he’s depending on Barrett and the other eight justices to rule on the looming vote count.
And that arguably wasn’t the worst note hit by “the Supremes” that night. While Barrett was politically posturing with Trump, the other justices were releasing the first in a series of emergency rulings that could say more about who wins the November presidential vote count than the dire determination of more than 150 million Americans to cast their ballot vote, even if it means standing in line for hours during a deadly pandemic.
Legal experts were shocked by the court’s emergency decision to block a one-day extension of accepting mail-in ballots in the critical battleground state of Wisconsin but were even more outraged by the factually- and logically-challenged opinion by another Trump appointee, Justice Brett Kavanaugh, that seemed to endorse the president’s worst conspiracy-theorizing about the 2020 election.
As the deciding vote in a 5-3 majority, Kavanaugh — who angrily told Democratic senators at his heated 2018 confirmation that “you sowed the wind” and “will reap the whirlwind” — wrongly characterized how and why many states have historically counted postmarked ballots that arrive after Election Day, in a bizarre opinion that’s already been corrected for one error and that a Slate article headlined as “Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump.”
“Perhaps Kavanaugh is planting his flag now, proclaiming that he won’t strike compromises for the sake of the court’s legitimacy; to the contrary, he’ll toss fuel on the fire, confident Democrats are too cowardly to retaliate,” wrote Slate’s Mark Joseph Stern.
We don’t yet know what will happen after Tuesday when the voting stops and the serious counting starts, nor is the Supreme Court’s role in determining the final outcome cast in stone — as dramatized later in the week when Kavanaugh again surprised the legal scholars by shifting gears and siding with the court’s remaining liberals to not — for now — limit the vote counting here in Pennsylvania or North Carolina, two other key states.
But even before the election is decided, we’ve already seen enough to know that Republicans have essentially politicized the nation’s highest court to a level where the judiciary can no longer be expected to fulfill its primary constitutional function, to serve as a balance and to check any abuses of power by the other two branches, the presidency and Congress. The faint echoes were there when five GOP-appointed justices twisted legal logic to halt the 2000 vote counting and declare George W. Bush the 43rd president, then ratcheted up to a volume of 11 when democracy-hating Senate Majority Leader Mitch McConnell used brute authoritarian logic to steal Supreme Court seats on either end of the Trump presidency. That’s all been against a drumbeat of rulings that have enhanced a warped notion called “corporate personhood,” while empowering billionaire donors and making it harder for historically oppressed people to vote.
All of this is causing policy wonks, including a handful of thinkers on Capitol Hill, to ask if it’s time for a radical overhaul of a court whose size and exact mission weren’t really spelled out when the Constitution was drafted in 1787.
“Our framers never envisioned Supreme Court Justices sitting on the bench ruling for 40-50 years,” U.S. Rep. Ro Khanna, a California Democrat, told me this week, adding: “We should not have a previous generation making rules for the the current one.”
Khanna — who grew up in Bucks County and graduated from Council Rock High School before planting his flag in Silicon Valley — is pushing a radical reworking that would gradually transition the High Court by replacing lifetime appointments with 18-year terms, so that every democratically elected president would get to select two justices every term. He said his idea, backed in the past by some Republicans, is a “bipartisan reform proposal” that “will depoliticize the Court and in that sense is the opposite of Court packing.”
So-called “court packing” — a term invented in the late 1930s when then-President Franklin Roosevelt proposed a scheme to add new justices to a court that had been blocking his New Deal reforms — certainly has support from many Democratic and progressive activists. They argue that two or four or even more new jurists is the only way to undo the damage to democracy caused by McConnell’s power plays to block Barack Obama from naming a justice in 2016 and then ramming through Trump’s appointee literally as America was voting in 2020. But increasingly it’s not just liberals who think the current Supreme Court has jumped the tracks.
Harvard law prof Charles Fried wrote this month in the New York Times about a string of High Court rulings in which “every one of them favors, and was favored by, partisan Republican interests and was decided 5 to 4 by Republican-appointed justices.” If Fried’s name sounds familiar, he was the nation’s solicitor general during the 1980s ... under Ronald Reagan, patron saint of the conservative movement, at least until Trump drove it over the cliff. Fried argued that a President Joe Biden, if elected, should put the justices on notice that he may expand the court, depending on how it handles issues like health care and abortion in the coming months.
But while the court was expanded and also shrunk from 6 to 10 to 9 justices up through 1869, talk of an expansion in the 2020s faces serious obstacles, and not just a Republican Party willing to implement minority rule by any means necessary. Adding new justices to lessen or undo the current conservative majority might alienate moderate voters who want Washington to act in a less-partisan fashion. And such a scheme also might not hold sway with that would-be President Biden, a 77-year-old institutionalist and incrementalist, who’s made his supposed ability to work across the aisle — despite a mountain of evidence that won’t happen — a centerpiece of his campaign.
You don’t need a Ph.D. in political science to see that expanding the court from nine to 13 justices and (assuming confirmation by a Democratic Senate majority in 2021) creating a 7-6 liberal majority — while satisfying the base of the Democratic Party — could be a non-starter, especially for a cautious Biden. But let’s be clear: The much greater risk for 2021 and beyond is doing nothing and allowing the Roberts court to wallow in its current state of illegitimacy. The notion that removing Trump from the White House is saving American democracy will be mocked if Trump’s justices defy the popular will on health care, reproductive rights, and voting rights for years to come.
A Democratic Congress and White House could, of course, expand the Supreme Court by just three seats — the same number as appointed by Trump during a presidency that history may regard as essentially invalid — and balance the number of liberals and conservatives, for now, thus requiring coalition-building to reach a majority. This could be done in conjunction with a long overdue expansion of the lower federal courts that Trump and McConnell have stacked with white males from the right-wing Federalist Society.
But I suspect in the end that Biden — who has promised to create a bipartisan commission to study an overhaul of the courts — and his key supporters may be drawn to a plan like Khanna’s that is more complicated but which also has a chance to make the courts less politicized — not just now but for decades to come. I do know this: The natural inertia will be for nothing to happen, unless we continue to pressure Biden and the Democrats to do something. It would heartbreaking to spend four years to rid America of Trumpism, only to see his warped philosophy keep ruling the nation on 6-3 votes, years after 2020′s ballots have been — fingers crossed — all counted.
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