At The Nation Elie Mystal declaims that there is “only one solution to the Amy Coney Barrett”:
It’s essential to remember that the reason Republicans have long sought to control the courts is that they serve as an antidemocratic check on the liberal agenda—and not just for an election cycle but for a whole generation. There’s not a single Democratic law or program that a court controlled 6-3 by conservative justices cannot frustrate or block. A Republican-appointed court will smack down voting rights legislation, gun reform legislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All. Republicans wanted the court as a hedge against their waning popular support, and now they have it.
The obvious—and only—solution to this Republican power grab is for Democrats to expand the number of justices on the Supreme Court.
Reflecting on the original purpose of the Supreme Court might help to illuminate the situation. It was deliberately constructed as the least democratic and least political of the three branches of government. It should be entirely technocratic in the sense that its job is to interpret the law, ensuring that lower courts have interpreted it properly or determine that the law doesn’t address the issue brought before it at all. That’s how it is in a common law system. The laws as written and interpreted historically sometimes just don’t apply. It’s the legislature’s job to “do justice”, to make laws, and to advance political policy.
If the problem you’re trying to solve is how to guarantee that a progressive minority can advance its agenda using the least democratic branch of government by politicizing it more to your liking, Mr. Mystal is quite right. But, if your objective is depoliticizing the SCOTUS, I think there are some other prospective solutions.
First and foremost, the Congress could start doing its own damned job or have its its members thrown out of office for avoiding that but I guess that’s too much to ask.
Another prospective solution is the Congress could act under its powers under Article III, Section 2 of the Constitution and limit the appellate jurisdiction of the Court. The controversial cases that have created the furor are all appeals to the best of my ability to determine.
The final solution to the problem is amending the Constitution to abolish the Supreme Court. If it is only an unelected and undemocratic legislature, it has no reason to exist.
Enlarging the Court will solve nothing. Permanent majorities are a fantasy. Having enlarged the Court once, it will be done again and again.
What a laugh that is considering Roe, Casey and any number of other “undemocratic” court decisions that Democrats have been fighting tooth-and-nail to preserve my entire life. Not to mention all the other issues they want decided by judicial fiat instead of legislation or democratic action.
Maybe it’s just perception, but the blatant dissonance in political arguments today is just astonishing, particularly the appeals to principle when it’s obvious that no principle is involved.
I’m old enough to remember when 8 of the Justices were Republican appointees, and the single Democrat was Byron White, who had dissented from Roe v. Wade. That was in 1992. It was the year that Roe v. Wade was replaced by Casey v. Planned Parenthood and few seem to have noticed.
I think the Nation is flat out wrong about the ACA being overturned. I assume this line of speechifying from Senate Democrats is based upon Barrett’s dissing of Roberts’ decision upholding the mandate as a tax. But that ship has sailed, invalidating the mandate was supposed to prevent the ACA from functioning, and now we’ve gone several years without a tax and the ACA is functioning. The SCOTUS may or may not strike down the toothless mandate, but that’s an entirely different question from whether the mandate is severable. Facts on the ground show that it is.
Mainly though I think people overemphasize past decisions, when a new court is most likely to be important for issues we’re probably not thinking about now.
That is completely consistent with the Whig history view of events that progressives hold. The moment the phrase “right side of history” is said all of our eyes should glaze over.
One solution I’ve recently read about from one of the writers at Volokh that appears to have cross-ideological support is to create two classes of SCUTUS Justices. The first class is for those first appointed to the Court for a term of 18 years and which hears only appellate cases. After 18 years, a justice is transferred to the second class which hears only original jurisdication cases and they serve for as long as they wish. There are more bells and whistles, but basically it sets up a framework where a justice is appointed every two years, and it doesn’t require a Constitutional amendment because Justices serve for life.
I guess the actual point of this post is to make a sideswipe on the “there is only one way” trope. There are dozens of ways to resolve the problem. The metaproblem is that there is no agreement on what the problem is. I think the Supreme Court presently has lots of problems and not just that the SCOTUS with the majority with the wrong ideology threatens the progressive agenda. Here’s one I haven’t seen mentioned. Justice Roberts isn’t doing his job. He should be publicly chastizing justices for their political activities or lack of judicial temperament. If that isn’t enough, there are things he can do to punish them.
Here’s another solution which wouldn’t need a constitutional amendment: no dissents. If a consensus decision cannot be reached on an appealed case, the decision of the lower court stands. The power of the Chief Justice is pretty awesome and that’s within it.
Additional justices wouldn’t require a constitutional amendment, either, but as I pointed out that just kicks the can down the road.
Pack the supreme court when “your” side has power. Then have the packed supreme court rule any unpacking or further expansion by the “other” side as unconstitutional. Permanent majority.
I say that in jest…
Well I think the problem is in the Senate, whether the Senators see it that way or not. We may be seeing the last Justice appointed to the SCOTUS in a generation. We may be closer to 7 justices on the bench than we are to 70.
The main problem with packing the court is that it works as a threat — Roosevelt threatened to pack the court and there was a generation of Justices that exercised judicial restraint when it came to federal statutes. If the court is actually packed, then it’s delegitimized as an institution and loses the power to be active where (in this case) progressives want it to be active.
” There are dozens of ways to resolve the problem.”
Except that you haven’t named one solution that would fix the problem now or anywhere in the near future. Even if Congress were to suddenly start doing its job there are many years of crappy laws on the books. I dont see your second solution doing anything. We wont pass another amendment in another 25 years, maybe never. Our tribal politics would have to go away. Not happening soon.
So what you have is a very powerful Supreme Court named by presidents representing a minority of the country. Since the first priority is political belief in choosing a judge and the second in young gas possible, we are stuck with this for a long time. If we had, just supposing, huge landslides for Democrats for the next 20 years the state AGs in red states could continuously funnel cases to SCOTUS and overturn laws passed by those large majorities. So an obvious long term solution is no life time appointments. 10 years at the longest. Would also get us more experienced judges.
Steve
“Supreme Court named by presidents representing a minority of the country”.
Ginsburg, Breyer, Gorsuch, Kavanaugh were appointed by Presidents who won a minority of the vote. But it seems to be bipartisan affair.
I think there are good reasons for term limits for the judiciary; but not due to its representation or who appointed them. They are non-partisan concerns like mental acuity and stamina at such advanced ages. It is not a coincidence the actual workload of the supreme court (in terms of cases heard) is decreasing over time.
Personally, the other reform I’d like is for Presidents to appoint more judges outside of Harvard/Yale, or outside of the big 10 law schools. To bring different perspectives on the law. But that wouldn’t be a partisan thing so no one cares.
All of the controversial cases have been appeals. It would have a lot of effect. My second solution does not require amending the Constitution. Article III, Section 2:
The Congress has never exercised that power but it is within its power.
That would require amending Article III, Section 1 of the Constitution. Didn’t you just say we weren’t going to amend the Constitution?
‘Justice Roberts isn’t doing his job. He should be publicly chastizing justices for their political activities or lack of judicial temperament. If that isn’t enough, there are things he can do to punish them.’
Justice Roberts spends more time trying to look good in the eyes of his perceived peers and cement his legacy than actual jurisprudence. He seems to operate backwards, figure out what the decision ought to be then trying to justify his position. His Heisenberg-like application of when is not a tax is a tax in the ACA decision is a classic case. The four Progressive members of the court sometimes don’t even seem to bother with legally justifying their positions. This comes from having turned the SC into a super-legislature, seeking ‘justice’ or figuring out what the law ‘ought’ to be rather than deciding constitutionality.
Packing the court by either side will make civil war inevitable. When redress of real or perceived wrongs is no longer considered possible, the bullet box gets opened. Civil war didn’t happen in Venezuela because Hugo Chavez made sure he had control of the guns before he packed the court. The BLM/ANTIFA/DeFund the Police made that impossible throughout most of this country.
‘Personally, the other reform I’d like is for Presidents to appoint more judges outside of Harvard/Yale, or outside of the big 10 law schools.’
I call that the Limousin effect. The Great Schism in the Catholic Church in Medieval Times occurred because a majority of the cardinals ended up hailing from the Limousin region of France and always picked one of their own to be Pope. When the Roman mob threatened to kill them if they didn’t elect an Italian pope, they skedaddled as soon as they did and elected one of their own.