The simple case for expanding the Supreme Court
The court is illegitimate. It needs a radical overhaul.
Thanks for checking out this edition of Public Notice. I’m on a bit of a baby break following the birth of my son Owen, but I’m ramping my publication schedule back up. This is the second of three newsletters this week (the first was a Q&A with Judd Legum). I’ll be back before the weekend with full coverage of the January 6 committee’s primetime hearing on Thursday. Cheers — Aaron
The Supreme Court has a legitimacy crisis. Too many powerful people think it’s legitimate, and their credulous or self-interested support for a sclerotic, unrepresentative institution is an active threat to democracy and liberty.
Obviously, this isn’t what most commenters mean when they say the Court has a “legitimacy crisis.” The usual claim is that people don’t see the Court as legitimate enough.
Liberal Justice Stephen Breyer has worried that “If the public sees judges as ‘politicians in robes’ its confidence in the courts and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.” Conservative Justice Amy Coney Barrett has similarly insisted “this Court is not comprised of a bunch of partisan hacks.”
One of the perks of being a Supreme Court Justice is that you are widely vetted and touted as as a serious thinker of profound legal thoughts. Justices get invited to universities to give weighty speeches; their words are analyzed by leading legal scholars; presidents and senators and the powerful of the earth hang on their words. Their standing would be lessened if they were seen as partisan hacks and politicians in robes. So it makes sense that Supreme Court justices would be interested in the court’s legitimacy.
But does the Court’s high standing really serve the rest of us? Has the Court, as Breyer suggests, historically served as a check on power, and a guard of freedom and justice?
During the Warren Court, from 1953 to 1969, the Court passed a number of landmark, almost universally lauded rulings which dismantled legal segregation and advanced the cause of the Civil Rights Movement. But that period is a significant historical outlier. For the most part, the Supreme Court’s legacy is considerably less admirable.
To just hit some highlights:
1823, Johnson & Graham v. M'Intosh: Chief Justice John Marshall argued that “the character and religion of [America’s original] inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.” The case served as the basis for ongoing dispossession of Native Americans.
1857, Dred Scott v. John F.A. Sanford: the Court ruled that enslaved people could not be freed by residing in free territory, and that Black people could never be citizens of the US. Two years later, in Ableman v. Booth, the court upheld the Fugitive Slave Law requiring all Americans to kidnap refugees from enslavement and collaborate in their imprisonment and torture. These decisions were so manifestly and horrifically unjust they incensed even moderates in the North and precipitated the Civil War.
1896, Plessy v. Ferguson: the Court gutted the 14th Amendment by ruling that segregation was legal.
1905, Lochner v. New York: the Court prevented New York from setting maximum working hours, effectively making it impossible for governments to regulate labor conditions.
1944, Korematsu v. United States: the Court upholds the creation of Japanese internment camps.
1986, Bowers v. Hardwick (1986): the Court upholds laws criminalizing gay sex.
2000, Bush v. Gore: the conservative majority on the Court decides to give the presidency to the Republican candidate.
And so forth.
Many of these decisions were eventually reversed. But it’s not particularly surprising that the Court has often sided with the powerful in their quest to strip rights and humanity from the vulnerable. After all, the Court throughout history has mostly been composed of influential, wealthy white men. Its decisions have tended to favor the interests of influential, wealthy white men.
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The Court’s distance from average voters, and from the interests and priorities of average people, has if anything become even more acute over the last decade or two. Since 1992 — 30 years ago — Republicans have won the popular vote for President exactly once. Yet, the Supreme Court currently has a 6-3 Republican majority. That’s because the electoral college and the Senate are both biased towards rural white Republican voters.
This bias allowed Senate Republican leader Mitch McConnell to take the unprecedented step of blocking Democratic President Barack Obama’s Supreme Court nominee for almost a year in 2016. McConnell also rushed through Trump appointee Amy Coney Barrett when Democratic justice Ruth Bader Ginsburg died in 2020.
The new, growing Republican majority has taken an openly reckless, cavalier attitude towards democracy and human rights. The court knee-capped the Voting Rights Act in 2013, allowing Republican majority states to enact draconian voting restrictions designed to disenfranchise Black voters and Democrats. It’s also legalized extreme partisan gerrymandering, effectively establishing permanent Republican one-party rule in states like Wisconsin.
Meanwhile, Clarence Thomas’ clownish, rabid reactionary wife Ginni took to text messages to urge Donald Trump’s chief of staff to illegally overturn the 2020 election. Clarence Thomas voted to deny the January 6 commission access to these insurrectionary messages. This is a serious conflict of interest, at the very least.
The Court’s next anti-democratic ruling is likely to be an attack on abortion rights. A leaked draft opinion suggests that the Court’s supermajority plans to overturn Roe v. Wade, allowing conservative states to institute draconian anti-abortion laws which force women to give birth even when they have been raped and when their health is endangered.
Overturning Roe is quite unpopular. But the public has no recourse. Justices are selected for life. They are wise and decide on the basis of law, not politics. They have no ethics guidelines, either, so if a justice colludes to try to overthrow democracy, there’s nothing to be done about it. We just have to assume no justice would do that, because justices are respectable. Therefore, their decisions must be respected. Right?
That’s what a lot of those in power believe. Non-violent, abortion rights protests outside the homes of Supreme Court justices were met with bipartisan calls of outrage and Congress (which can’t pass a pea) immediately approved more security for the families of the justices.
Earlier in Biden’s term, a bipartisan panel of experts turned in a tepid report on Supreme Court reform which vaguely suggested that term limits for justices were popular — but since those violate the Constitution, they’re virtually impossible to institute. The panel was leery of recommending reform measures that could actually pass, like adding justices, because they feared it would be viewed as partisan.
The Court’s prestige and reputation for disinterested deliberation makes it difficult for those who value prestige and reputation to advocate for reform. But in fact the current Court is a wildly out of touch, hyper partisan collection of bounders, hacks, and people credibly accused of sexual misconduct. The institution has a history of vicious racism, bigotry, and cruelty, while its current record is one of contempt for democracy, flirtation with authoritarian insurrection, and grotesque misogynist assaults on women’s freedom.
The Court is not above partisanship. It functions simply as a third legislature, which can overturn the other two, and which has an illegitimately engineered permanent conservative majority. There is no reason we should allow that status quo to stand, and every reason we should overturn it. As soon as there is a large enough Democratic congressional majority and a Democratic president, they should appoint 15 new justices. Then let Ginni Thomas rave into her text messages as copiously and delusionally as she wishes. No one will care.
In that regard, the good news is that the Court, through its obvious hackery and cruelty, is busily delegitimizing itself. Political scientists have found that when people disagree with court decisions, they are, as you’d expect, likely to agree with plans to overhaul them. So if the court keeps making unpopular decisions — for example, rewriting the law to allow for the widespread torture and harassment of people who give birth — support for bringing the justices to heel is likely to increase.
Democrats, though, could help the process by acknowledging the partisan realities, and framing not just the current majority, but the very institutional make-up of the Court as reactionary and anti-democratic. The Court is composed judges who don’t answer to the electorate and have spent the last 10-20 years assaulting voting rights. It’s an illegitimate, authoritarian institution which is trying to impose minoritarian tyranny on the majority.
Given those realities, the Court and its conservative majority should be mocked, insulted, and protested at every opportunity. Only when the Court is thoroughly delegitimized will there be the political will to force it to be accountable to the public and the democratic process.