What Will We Do About the Supreme Court?

The nation’s editorial pages are full of SCOTUS commentary today. Here is a sampler.

Let’s start with the New York Times, which is running a Supreme Court special section of op eds headlined How to Fix the Supreme Court.  Emily Bazelton’s How We Got Here is worth reading. She describes several times in past history in which the Supreme Court was smacked down by the other branches. For example, the number of justices was increased to nine (in 1869) by Congress in anticipation of their interference with Reconstruction. Bazelton continues,

The most pressing question now is whether the conservative majority will issue rulings on voting, the census, redistricting and other foundations of fair and free elections that threaten the majoritarian nature of American democracy itself. If the conservative justices take these steps, they will entrench the power of the Republican Party that gave them their seats just as an increasingly multiracial electorate shifts away from the current Republican coalition.

Even now, Republican dominance over the court is itself counter-majoritarian. Including Amy Barrett, the party has picked six of the last 10 justices although it has lost the popular vote in six of the last seven presidential elections, and during this period represented a majority of Americansin the Senate only between 1997 and 1998 (if you count half of each state’s population for each senator).

That’s a dangerous proposition for our constitutional order. The court can hold its conservative impulses in check with an eye to the future. Or it can ramp up a power struggle with the other branches that in the end — Marbury or no Marbury — it is destined to lose.

Larry Kramer, former dean of Stanford Law School, says it’s time to “pack” the court.

Liberals say that if Joe Biden wins the election, Democrats should answer by adding justices to the Supreme Court. Republicans respond with faux outrage that this would politicize the judiciary. But they have already politicized the judiciary. The question is whether only one side should play that game. Besides, not only is enlarging the Supreme Court legal, its size has changed seven times over its history.

Adding judges would be a political response to a political act. But the extremes to which Republicans have been willing to go leave the Democrats no other choice. Not for revenge or because turnabout is fair play, but as the only way back to a less politicized process.

This is a lesson we learned decades ago from economists and game theorists: Once cooperation breaks down, the only play to restore it is tit-for-tat. It’s the only way both sides can learn that neither side wins unless they cooperate.

Another fix Kramer suggests is to choose a new justice with each Congress, and the nine most recently appointed justices would be the ones to hear cases. The older justices would still be on the Court and could fill in when a current judge is unavailable. This is a way to put in term limits that would not require a constitutional amendment.

Kent Greenfield, a professor at Boston College Law School, suggests creating a new court that would deal with constitutional questions.

The most contentious and important legal issues — whether states can ban abortion, or whether the president can refuse subpoenas or mandate travel bans — should be shifted from the Supreme Court to a new court created to decide such issues….

… This court would be made up of judges from other federal courts, selected by the president from a slate generated by a bipartisan commission to create legitimacy and balance. The judges would serve limited terms, then return to their previous courts. Staggered terms would guarantee each president several appointments.

Also at the New York Times, see Melody Wang, Don’t Let the Court Choose Its Cases.

At Washington Monthly, see Garrett Epps, Independent Judiciary, RIP.  “If We the People accept without serious reform this new marsupial court as it is being contemptuously thrown to us, we do not deserve self-government.”

At the Washington Post, see Paul Waldman, There’s no more doubt: Democrats have to expand the Supreme Court.

Keep this image in your mind: Justice Amy Coney Barrett, standing with President Trump on a balcony at the White House, smiling in satisfaction as the crowd below them whoops and hollers with joy after Barrett was sworn in to the Supreme Court.

Barrett no longer needs to pretend that she’s anything other than what she is: a far-right judge, installed on the Supreme Court by a president who got fewer votes than his opponent and confirmed by a Republican majority that represents fewer voters than their Democratic colleagues, whose job it will be to do everything in her power to maintain minority GOP rule while carrying out a conservative judicial revolution.

That picture of Barrett and Trump reveling in their mutual triumph was so vivid that the Trump campaign literally turned it into an ad for the president’s reelection. A different person might have said, “Mr. President, it wouldn’t be appropriate for me to participate in such a nakedly political event.” But Barrett wasn’t concerned. She didn’t shout “MAGA 2020! Suck it, libs!” but she might as well have.

Trump and Barrett after Barrett’s swearing-in at the White House.

Waldman continues,

“A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” he [Mitch McConnell] said Sunday about Barrett’s nomination. “But they won’t be able to do much about this for a long time to come.”

But they can, and they should, no matter how much Republicans whine about it. If voters give them the White House and the Senate, they’ll have the legal right and the moral obligation to do so. Without it we won’t have a real democracy.

Of course, people are asking if Joe Biden has the cojones to expand the court. I don’t know, but a Democratic-controled Congress wouldn’t have to wait for Joe Biden. Congress could pass a bill for Biden to sign, and I believe he would sign it.

Other commentary from WaPo:

At Talking Points Memo, Josh Marshall writes See the Corrupt Court for What It Is. This is a members-only article, so I’ll quote a bit.

If you needed to know anything more about Amy Coney Barrett – I didn’t, but if you did – she made her first act last night appearing at a splashy campaign event for President Trump. Once the Senate voted to confirm her on a party line vote, she had a lifetime appointment and literally no need for anything from President Trump. Indeed, she would quite likely have marginally improved the odds that the corrupt conservative Court majority would remain in place by declining such an appearance.

She did it anyway and that was a choice.

Also, too:

Meanwhile, Justice Kavanaugh, himself a former Republican political operative rinsed and rebranded as a High Court Justice, issued another ruling to restrict voting access in the current election. Critically and ominously he added what amounted to a threat to use the Court to block vote counting after election day or mail-in votes altogether. Kavanaugh laundered Trump’s tweet threats into SCOTUS-ese. But the message was the same. He aped the Trump’s line about “chaos” and uncertainty if there’s no definitive result on election night even though the election night result is purely a function of election calls by media organizations. No states publish or certify election results on election night. It always takes days and usually weeks to do.

We all understand that we’re used to knowing who won on election night and we’d all like this to be done. But Kavanaugh’s gambit highlights the fact that knowing the results on election night or halting the counting of votes on election night is purely a figment of press schedules and cannot have any legal or constitutional standing. He is simply part of the greater Republican corruption and its increasingly open program to use the power and legitimacy of the Supreme Court to engineer Republican election victories even its candidates can’t muster the most votes. It is a corrupt program; it is a corrupt Court.

Related: Mark Joseph Stern at Slate, Brett Kavanaugh Signals He’s Open to Stealing the Election for Trump.

At the Atlantic, see Emma Green, The Amy Coney Barrett Hail-Mary Touchdown.

Republicans look to the Supreme Court as a firewall for their agenda. Conservative advocacy groups spent millions on swing-state ads meant to pressure Republican senators, points out James Wallner, a Republican former senior Senate staffer and current fellow at the R Street Institute. “It’s nonsense to suggest it’s not supposed to be political,” he told me.

Even after four years of controlling the Senate and the White House, along with two years of holding the House of Representatives, “Republicans don’t have a lot to show for [themselves],” Wallner said. “Confirming Barrett right before Election Day is a continuation of a trend: We have to do something.” In the absence of major legislative achievements, he said, the judiciary has become an arena where Republicans, the party of small government, look to entrench their power. The party’s instinct “is not to check the Court. It’s to control the Court,” Wallner said.

Also at the Atlantic: Angus King Jr. and Heather Cox Richardson, Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny.

Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public. Its real purpose is to justify a return to the legal environment of the early 1930s, when the Court routinely struck down essential elements of the New Deal. Business regulation, Social Security, and Medicare? Not so fast. The Affordable Care Act, environmental protections, a woman’s right to choose? Forget it. And this despite the Constitution’s preamble, which states that one of its basic purposes is to “promote the general welfare.”

I wrote my own opinion of originalism a few days ago; see A Tyranny of the Dead.

Expanding the Supreme Court and other federal courts may be just the beginning, but I don’t think there’s any question it has to be done. To re-quote Garrett Epps from above, “If We the People accept without serious reform this new marsupial court as it is being contemptuously thrown to us, we do not deserve self-government.”

13 thoughts on “What Will We Do About the Supreme Court?

  1. IF Biden wins the election and IF the Supreme Court does not select tRump to be president again THEN we still need a Dem Senate Majority where the Feinsteins do not block the ability of MoscowMitch and the rePukes to filibuster and keep the Dems from accomplishing anything of major significance.

    I wish I could be optimistic that a President Uncle Joe, Chuck "Wall Street" Schumer, and Nancy "PayGo" Pelosi will have the gonads to do what is needed.  We will know if it will all fall apart in January if a Dem Senate Majority does not kill the filibuster.

  2. "As the court rejected a Democratic attempt to allow mail-in votes, postmarked by Election Day, to be received up to six days after the election in Wisconsin, Kavanaugh also suggested that state courts may not have the last word in interpreting state election rules."

    (Note that when these postmarked before election day ballots are received are a function of a Trump Post Office's ability or desire to deliver them, and has nothing to do with any negligence on the part of the voters or the state BOE!)

    "Kavanaugh's language overall mirrors President Donald Trump's rhetoric about calling a winner on election night."


    Unless Biden wins by a landslide or something close to it on Election Night, we may have a replay of Bush v. Gore.

    BTW, what happened to the "states rights" that the right has held so dear? Here Kavanaugh is essentially saying states can't make their own rules when it comes to managing statewide elections. But I guess states rights only applies when it comes to "managing" people of color, and definitely not to democracy and democratic governance.

      • "States have the right to follow the conservative agenda." States don't have the right to obstruct U.S. citizens from voting. But you may have missed csm's point, which is that Kavanaugh appears to be saying that state's don't have any rights in voting procedures.  

        • I should have included irony punctuation in my first comment.  Republicans have always supported states rights to go against Washington–so long as the opposition comes from a conservative basis (e.g., the right to ignore federal civil rights law and abuse people that conservatives hate).  States rights go bye-bye (as in the Wisconsin voting case) when they go against Republican supremacy.

  3. What will we do about the Supreme Court? Burn it down, salt the ground it stood on… the nuke the site from orbit.  It's the only way to be sure.

  4. What to do…the Supreme Court. It’s much too soon to tell. A lot will depend on how the court behaves wrt Donald Trump and the election. Will the Court provide cover for the Republicans as they try to challenge the election? How will they handle the lawsuits coming after Trump or his companies the moment he leaves?

    Great short interview of Michael Cohen talking about Trump’s leaving (and other things).

  5. It's that self-satisfied smirk she's got that really makes me think of going all "Greek Mythology" on all their KKKonservative asses!


  6. About the need for tit-for-tat to restore cooperation: just so. Trump has taught me that Michelle Obama was wrong when she said "when they go low, we go high". That was a beautiful and noble sentiment from a beautiful and noble lady, but it doesn't work in the world as it is. The correct program is:

    When they go high, we go higher; that's what wins the argument. But when they go low, we go lower; that's what wins the fight.

    AOC understands this. That's why the reactionaries fear her.


  7. If they can, Democrats in Congress will delay expanding the court until after the mid-terms. Why? Because if Democrats do anything "radical" with their power, the Nervous Nellies (moderate voters) return divided government as a check on government power. Obama was a lame-duck president for six years because voters have this aversion to government moving too swiftly.

    The ACA cost Democrats their majority – Republicans made government-subsidized health care the scariest thing in politics since Hitler built gas chambers. It worked for the election but the ACA has a 55% approval rating v a 39% disapproval rating. So how's it going to make the GOP more popular when the Trump Court strikes down the ACA? Pre-existing conditions will return – the insurance companies will stick it to women. (Women are the biggest and most significant group turning on the GOP.) The radical court will turn on Roe v Wade. Did you know 75% of voters want Roe v Wade to be maintained? But I predict the Supremes will go there in 2021. 

    There's the adage that a cat who walks across a hot stove one won't walk across a hot stove a second time – or a cold one. Congress-critters are stupid. After what happened to their majority in 2010 (post Obamacare), they won't want to provide Republicans with the ammunition to snipe at what Democrats do as radical socialism. So here's what we can expect from Democrats – procrastination. They are going to try to do NOTHING beyond tax reform and Covid from 2021 to 2022. MAYBE, if they don't lose their majority in 2022, they will pick up court reform in 2023. Maybe.

    I say STUPID because Obamacare was only unpopular because it was an unknown and huge sums of GOP money was spent making Obamacare the spawn of Satan while it was unknown. Obamacare is not unknown – it's popular and there will be no doubt who took it away. Roe is popular – there will be no doubt who struck down women's rights. But after losing their majority, the idiots in Congress will try to avoid upsetting voters by using their power. (What's the point of fighting to elect Democrats if they won't use their power to do stuff when they can?) 

    So what do we do? Start organizing in two weeks (post-election.) One week after Obamacare goes down in flames, we let the Democrats in the House know we are going to build a huge fund for candidates who will vote to expand the court. If the House does nothing, that money gets released to Democrats for the primary – and the Democrats who sat on reform get the bulls-eye on their back. We don't wait to organize until procrastination becomes evident – you can bet on it. And we can act on it, long before the primary season starts. 

    BTW, we'll be able to do a lot in 2021, and up into 2022 relatively unopposed by the GOP. They're going to be in a Civil War – the Trumpsters will want to control the Republican Party, and the Republican establishment will want to move past the disaster that Trump proved to be. I'd be willing to bet that Trump will blame establishment Republicans for his loss. (The old trope, "stabbed in the back" will be the explanation for Trump's rout, because it couldn't have been the Democrats alone.)

    We will be told in November that the good guys won – thank you very much. Everbody go home and shut up. If we do it, we're screwed.

  8. Just 6 days left until… until…

    I don't know.

    Chaos?  The Abyss?  Armageddon?  Another Civil War?  The 2nd Coming?  The Turd Reich?

    Fascism, or some form of aspirational representative democracy?

    You know!!!  The little things.

  9. Trump is counting on election-day chaos; yet he also is counting on last-minute election-day Red turnout. These plans are in conflict. As usual, Trump is his own worst enemy.

    Therefore the wisdom of early voting. I recommend it for all here, and for all elections from now on, assuming that we will be allowed to vote.

  10. If Biden wins and democrats take the senate, they can't mess about.  The implied excuse of not responding, radically, in kind to GOP transgressions, that doing so will pass of the establishment is no more; even the establishment is recommending it.

    Ater all that the McConnell led GOP has done, as they sit back and gloat about it, finding courage to respond accordingly with court reform shouldn't even be in question.  They should be pissed off enough to not being able to wait to balance the scales.

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