Essential: Reforming The Supreme Court... Will Biden Fail At That Too?

The ideas behind "defund the police" are excellent but because of the inflammatory slogan, those ideas will never be seriously considered. Reallocating some funds from police budgets into non-policing aspects of public safety is smart policy. Whoever came up with the slogan handed the powerful police lobby and their craven political backers the ultimate weapon against that smart policy.

Just as idiotic was whomever decided to use the failed slogan "Pack the Court," derived from FDR's 1937 bill that would have granted the president power to appoint an additional justice to the Supreme Court-- as many as 6-- for every member of the court over 70 years old. Senator Henry Ashurst (D-AZ), a kind of Kyrsten Sinema of his day-- although she went to college and he didn't-- bottled the legislation up in the Judiciary Committee for over 5 months, while it lost momentum and gave conservative Democrats to make common cause with the Republicans against it.

There were plenty of good reasons in 1937 to expand the Court, aside from partisan ones, and those reasons are even more salient today. A month after the bill was introduced in February of 1937-- right after FDR's massive reelection victory, in which the Republicans were reduced to 88 House seats to the Democrat's 334 and a mere 17 Senate seats-- FDR communicated directly to the public via radio, asking "Can it be said that full justice is achieved when a court is forced by the sheer necessity of its business to decline, without even an explanation, to hear 87% of the cases presented by private litigants?"

The certiorari system, where the Supreme Court decides what cases to take, was set up in 1925. In 1940, it took around 20% of the cases. Now, if you want the Supreme Court to hear your case, you might as well be playing Powerball. That's one reason why Alan Grayson-- before being elected to Congress, a law clerk for both Ruth Bader Ginsburg and Antonin Scalia-- loves the idea of expanding the Supreme Court. Last April, he told that "When you consider that the Supreme Court doesn’t even hear 98% to 99% of the cases that it’s asked to decide, that doesn’t seem like enough, even if the GOP hadn’t been packing the courts relentlessly for the past 50 years, since the time of Lewis Powell." The same week Mondaire Jones, who had worked in the Obama Justice Department before being elected to Congress and joining the Judiciary Committee, told me he had a different reason for introducing a bill to expand the Supreme Court from 9 members to 13. "Our democracy is hanging by a thread," he said. "And the far-right majority on the U.S. Supreme Court is cutting it. From Citizens United to Shelby County to Rucho, the Court has been hostile to democracy itself. The majority’s doctrine is clear: if a law suppresses the right to vote, it is constitutional; if a law protects the right to vote, especially for Black and brown voters, it is unconstitutional. The American people have had enough. To restore power to the people, we must expand the Supreme Court. I am proud to introduce the Judiciary Act of 2021 to do just that."

Notice, neither Grayson nor Jones uses the idiotic phrase "pack the Court." Last month, in an otherwise smart OpEd for Time Magazine, Kermit Roosevelt III, a distinguished University of Pennsylvania professor of constitutional law and a member of Biden's Supreme Court Commission, did. His ideas would have been taken more seriously if Time hadn't slapped on the idiotic headline: I Spent 7 Months Studying Supreme Court Reform. We Need to Pack the Court Now. He wrote that he "went into the process thinking that the system was working but that improvements were possible. I came out scared. Our system is broken in two obvious ways, that threatens America’s self-governance. One of them is about the long-term legitimacy of the judiciary. The other is an immediate crisis."

These problems overlap. The first is mostly about we could call high politics, or theories of constitutional interpretation. It is generated by the combination of life tenure and Senate confirmation for the Supreme Court, and it is that the composition of the Court is not tied in a predictable and uniform way to the outcome of presidential elections. Some presidents appoint several Justices; some presidents appoint none. What determines how many appointments a president gets is a combination of pure luck and partisan hardball. We do not staff any other branch of our government that way, and it has distorted the relationship between the Court and democracy.

The Framers intended that the American people, through the elections of presidents and senators, would have ultimate, though indirect, control of the composition of the Supreme Court. But the Framers did not anticipate the party system, and that throws a wrench in the works. Under the current system, a party that wins a minority of presidential elections may nonetheless end up appointing a majority of justices. And once a majority is obtained, strategic retirements (justices stepping down under a president of the same party that appointed them) can preserve it, even if the party wins only one in three or even one in four presidential elections going forward. The result is a court that reflects minority views and values-- not necessarily in a partisan political way, but in terms of Court’s approach to constitutional interpretation. One does not have to believe that judges are politicians in robes to understand that who the judges are matters. Judges appointed by Republican presidents generally vote and reason differently from those appointed by Democratic presidents-- especially now that nominees are more carefully screened for ideological soundness. When a minority party appoints a majority of the Supreme Court, the Court will tend to issue decisions based on a minority understanding of what the Constitution means and how it should be interpreted.

The most prominent face of this problem today is abortion. Generally speaking, Democratic appointees support abortion rights; Republican appointees do not. (The possibility that justices will surprise us with their votes exists, but it has diminished.) Going back to the appointment of Justice Thomas, currently the longest-serving Justice, Democrats have won five out of nine presidential elections (and won the popular vote in seven out of nine), but they have appointed only three of the nine sitting Justices. Thus it will not be surprising if the national majority’s view about Roe v. Wade does not prevail on the Court, even while national polls show strong majorities in support of preserving Roe. And if nothing is done, it will not be surprising if the 6-3 Republican advantage persists for decades, even if Democrats continue to win presidential elections.

The solution to this problem is simple: term limits for Supreme Court Justices, with staggered eighteen-year terms so that each president gets two appointments per four-year term. That is a nonpartisan, good-government reform that has broad support-- but not as much as it deserves. It will not immediately restore the Supreme Court to where it would be if past presidents had equal influence, but it will fix the system going forward.

The second problem is related, but somewhat broader. It is generated by the structure of our constitution more generally, which allows a well-placed minority to take over every branch of the federal government.

As we have seen in recent years, the electoral college allows a candidate to win the presidency while receiving a minority of the popular vote. The rule that each state is equally represented in the Senate means that Senators representing a minority of the population can control their chamber. A minority can take over the House of Representatives through partisan gerrymanders. And a president elected by a minority of the people can nominate judges who are then confirmed by Senators representing a minority of the people. Once in power, the minority can try to retain its position by further distorting the democratic process: gerrymanders, voter suppression, and judicial invalidation of attempts to protect voting rights

All of this is happening now. We are witnessing a minority takeover of our democracy. The Supreme Court has stood by in the face of some anti-democratic actions. It has allowed partisan gerrymanders, which distort the elections of state legislatures and federal Representatives. (In Wisconsin in 2018, Democrats received 53% of the votes cast for the state Assembly-- and won 36% of the seats.) It has allowed states to impose on burdens on voting as a response to imaginary threats of fraud. More striking, the Court has itself intervened in the political process. In 2013, it gutted the Voting Rights Act, which for fifty years had protected the electoral participation of minorities. Recent months have seen states going even farther in reshaping their electoral systems, giving partisan officials more power to refuse to accept results they don’t like.

This is a problem of partisan politics. It is the Republican party attacking democracy, and the Supreme Court is helping it. Because it is partisan phenomenon, there is no nonpartisan good-government fix for it. If term limits had been in place earlier, we might not have come to this point, because the Supreme Court would not have facilitated the minoritarian takeover. If term limits are enacted now, they may eventually give us a Court that is again willing to step in to protect democracy, rather than the undermine it. But it is not at all clear that we have the luxury of time.

The only reform that fixes this problem now is court expansion. That could give us a majority of Justices who would defend democracy against these assaults instead of participating in them. I have always viewed expansion with great skepticism, as a last resort, the fire axe in the glass case on the wall. But we may well be at the point of breaking that glass now. Our constitutional system has produced a playing field that tilts toward the minority. This is not because wise Framers wanted it that way-- they didn’t foresee political parties at all. It is because our political divide maps well onto an urban-rural split, so that Democrats tend to control high-population states and Republicans low-population ones. That means that the small-state bias of the Senate and the Electoral college is now a partisan bias. Add in the effects of partisan gerrymanders, and Democrats typically need several percentage points more than a simple majority of the national vote to win. Add in voter suppression and this seems increasingly unlikely. Add in the attempts to delegitimize Democratic victories and the talk of gerrymandered state legislatures rejecting electoral results they don’t like, and the hill gets even steeper. Absent some decisive action, we could be looking at generations of minority control.

There are political considerations here, to be sure. The one put forward most often is that if Democrats expand the Court, Republicans will do so in response as soon as they get the chance. That’s possible, but battles over the court are already in a downward spiral of retaliation-- just ask Merrick Garland. Game theory actually suggests that the way to prevent an opponent from repeatedly taking advantage of you is to show that you will fight back. The concern that Republicans might manipulate the size of the Court for partisan advantage in the future if Democrats do it now overlooks the fact that they’ve already done it, in the very recent past. Refusing to consider any Obama nominee (and pledging to do the same to Hillary Clinton if she won) is exactly that.

Those are the two points that everyone should take away from the Commission report, points that are presented but muffled by wishful bromides about neutral judges and myopic defense of the status quo. Court expansion may be the only thing that will save our democracy for the next generation.

I asked a couple of Blue America-endorsed House candidates who have been campaigning on equal justice planks where they stand on court expansion. Steven Holden, in Central New York is running against a pair of establishment schlmeils in the Democratic primary and a gaggle of Trumpists in the general. He's the only one taking about Court expansion. "In our last candidate forum against two establishment Democrats," he told me, "I was the only candidate talking about judicial reform, and I used those exacts words. I said that unless we add judges, put term limits on those judges, and require all judicial nominees to get a hearing and an up-down vote in the Senate, every policy we propose will be challenged in Federal court by a right-wing Attorney General. Again, this is a matter of messaging. Much like the Right called the ACA 'Obamacare', police reform 'Defund the Police', they will scream 'Pack the Court.' We must be better in our messaging."

Crusading Los Angeles Assemblywoman Cristina Garcia is also facing an establishment shill-- a Manchin-Sinema type. "As the forty-ninth anniversary of the landmark Roe v Wade decision approaches, the pro-choice movement faces a dire crisis that many of us have not witnessed in our lifetime. A 6-3 majority on a Trump-packed Supreme Court makes the overturn of Roe v Wade not only probable but highly likely. A nine-member court leaves the possibility of an ideology tainted court very likely. We are seeing that reality now. And the reality is that low income communities of colors are the ones who will bear the brunt, they're the ones who can't afford to travel across statelines for an abortion. Progressives need to sound, not a drum, but a pipe organ to expand the Supreme Court NOW; it's a matter of equitable access for all, not just those who can afford it."