Expand high court to end its tyranny
Earlier this month, when hearing oral arguments in Dobbs vs. Jackson Women’s Health Organization, a majority of Supreme Court justices seemed poised to overturn Roe v. Wade and give states the ability to ban or strictly limit access to reproductive rights. While three justices staunchly oppose this outcome, the end is foreordained: Even if Chief Justice John Roberts votes to uphold Roe on the basis of stare decisis (or respect for the court’s precedents), the math is crystal clear with five justices ready to turn back the clock on women’s reproductive rights.
This radical Supreme Court has already allowed a system of bounty hunting to impede women’s access to abortion to take effect in Texas, thwarted myriad efforts to control COVID through state and local regulation, and undermined voting rights and efforts to control dark money in politics. Coming soon is a likely limit on state powers to limit dangerous firearms in urban centers and possibly crippling decisions with respect to climate change and air quality.
Given the justices’ lifetime appointments, their ages and estimated length of service, the U.S. will have a reactionary Supreme Court for more than a generation.
Indeed, given the court’s assault on democracy and its openness to extreme partisan gerrymandering and Republican voter-suppression laws, the current Supreme Court might well destroy American democracy itself.
There’s too much at stake to allow the iron grip of a radical right to determine our future. That’s why we must reform the Supreme Court and most importantly add justices who can mitigate this sharp right turn. For the past eight months, I served on the Presidential Commission on the Supreme Court, where we heard testimony, analyzed and debated proposals to change the court, and ultimately produced a lengthy report.
Initially skeptical about the idea of enlarging the court, by the time our work was over, I had come to support expansion. I was persuaded that we face a fraught future without this reform. While I still back term limits for justices as well, that reform will not have an impact soon enough to mitigate constitutional tyranny by the court.
Ultimately all the commissioners voted to send the final report to President Biden, having fulfilled our charge of analyzing the issues. While we were not asked to provide recommendations, by the end of the process, many of us shared the view that court expansion is now a necessity.
Not only the Supreme Court but also the lower federal and state courts have been the targets of a conservative legal campaign to stack the judiciary with inexperienced and unqualified hard-right zealots so young they will serve for decades. The Federalist Society and allies in the Christian conservative legal movement have worked to develop and nurture current and future judges and run aggressive political efforts to get them appointed and elected. Their success can be seen now in the six-justice conservative supermajority on the Supreme Court, as well as the many judges President Trump installed on the lower courts and the right succeeded in getting elected to state benches.
These groups and allies in Congress employed unprecedented tactics, including blocking President Barack Obama’s ability to fill the seat of Justice Antonin Scalia when he died early in 2016, eliminating the filibuster to confirm Neil Gorsuch, hastily confirming Brett Kavanaugh without allowing a thorough investigation of sexual assault allegations, and, perhaps most shockingly, jamming through Amy Coney Barrett in just a few days and very shortly before the November 2020 elections — almost before Justice Ruth Bader Ginsburg had been buried.
As Justice Sonia Sotomayor has said, this court is drenched in the “stench” of politics, both in how it has been selected and the rulings it issues. There is no other choice but to add justices in order to prevent the court from taking us even further backward in terms of democratic rights and personal autonomy. I do not propose this lightly, recognizing that a Republican president might feel empowered to continue the expansion, resulting — as some argue — in an endless one-upmanship of court expansion. But the alternative of passivity is even worse.
Biden has moved expeditiously to nominate outstanding and diverse jurists to serve on lower federal courts, but he has not yet had an opening on the Supreme Court. Even if Justice Stephen Breyer puts country before ego and retires in time to give Biden an appointment before the possible loss of the Senate in the next elections, that will still not save us from the relentless math that locks in unelected Supreme Court tyranny for decades to come.
Our two elected federal branches need to defend our democracy right now against an unelected, out-ofcontrol Supreme Court by adding seats to it and filling those seats with qualified, mainstream justices.