Expanding the Supreme Court is the only way to restore its legitimacy

We are living in fraught times, to say the least. A pandemic, war, racial injustice, climate change, gun violence — compounded by disinformation and political polarization — engulf us. But we also face a menace that spans all of these issues and more, and threatens to extinguish established constitutional rights and the delicate balance among our branches of government.

That menace is the United States Supreme Court.

As we know from the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization — concerning Mississippi’s abortion ban — the current right-wing majority is poised to overrule Roe v. Wade. The justices will substitute their own (dare I say, religiously based) views for an established precedent that has guaranteed a highly personal and consequential right for almost half a century.

» READ MORE: As Roe v. Wade is threatened, Inquirer readers respond

What makes it worse is that the ruling faction on the court is illegitimate. Justice Neil Gorsuch’s seat was stolen, after the Senate refused to consider then-President Barack Obama’s nominee, leaving the seat unfilled for more than a year until President Donald Trump assumed office. Justice Amy Coney Barrett’s confirmation was rushed through when voting had already begun in the 2020 election. It is generally accepted that all three Trump justices were appointed for the express purpose of overturning Roe, even though they dissembled to Congress and the American people when asked about their intentions.

The hubris of this majority on the court and the harm it will do are not limited to abortion. Other guarantees grounded in the right to privacy are also at risk, like same-sex marriage. So are voting rights. This majority also seems determined to hamstring administrative action to protect the public — like safeguarding workers during a deadly pandemic.

Perhaps most terrifying, as we again witness the massacre of innocent shoppers and elementary school children by angry gun owners, the extremist majority is expected to deal yet another blow to gun-violence prevention measures before the end of this month. Rational attempts to stem this country’s horrific epidemic of gun violence were already stymied by the court’s indefensible ruling in 2008 that individuals have a constitutional right to keep guns in their homes. Now, even though gun violence in our country has increased 40% to 50% in the last decade, annual gun manufacturing has tripled since 2000, and massacres that should shock us occur almost every day, the right-wing majority is expected to expand the scope of the Second Amendment even further and make it easier to carry weapons in public.

None of this is “conservative.” It is profoundly radical, and antithetical to core American values that have prevailed for decades.

“None of this is ‘conservative.’ It is profoundly radical.”

Are we, the people, powerless to stop this epic perversion of justice?

Protesting will not change the minds of ideologues. Enacting federal laws preserving rights would be beneficial, but as this majority demonstrated with the Voting Rights Act, it could strike down or drastically limit such laws.

Like other federal judges, Supreme Court justices serve for life, shielded from removal except by impeachment. The only way to restore integrity to the court, therefore, is to increase the number of justices. Adding four justices, as pending bills in Congress would do, would bring the number to 13, corresponding to the current number of judicial circuits.

Congress has full authority to make this change. Originally there were six justices; Congress has increased and decreased the number several times.

Some object that if a Democratic Congress expands the court, a future Republican Congress will do the same. But a future Republican Congress could take this action regardless. Republicans have already shown they are willing to ride roughshod over settled congressional norms to achieve their objectives, especially concerning the Supreme Court. Moreover, such action by Republicans would lack any principled basis, whereas the current proposal seeks to remedy the theft, hypocrisy, and elevation of personal beliefs over precedent that currently deprives the court of legitimacy. (Its approval rating has been declining drastically and is at a new low.)

The court’s current majority is radically out of touch with the real-world consequences of its decisions. It relies on abstractions about “life” and “freedom” that lead to actual loss of lives (by limiting our collective ability to prevent gun violence) and loss of freedom (in many contexts, including reproductive rights and the freedom to go about our lives without risk of being shot). All of this is happening on a grand and incomprehensible scale.

It is up to ordinary Americans — and the representatives who serve us — to rebalance the bench and restore the legitimacy of the court, so that it can resume its paramount role as protector of our fundamental rights and our democratic institutions.

Nancy Bregstein Gordon clerked on the Supreme Court for Justice Lewis F. Powell Jr. and co-taught the Supreme Court Clinic at the University of Pennsylvania Law School. She lives in Haverford.