How do we fix the Supreme Court?

Oct 4 JDN 2459127

By now I’m sure you have already heard the news of Ruth Bader Ginsburg’s death. My social media feeds have been full of people either lionizing her for her accomplishments on behalf of women’s rights or demonizing her for her record on Indigenous rights.

If you are a woman, a person of color, or LGBT, her death likely struck fear into your heart. If right-wing justices gain a majority, your—our—civil rights are once again up for grabs. Obergefell v. Hodges, Grutter v. Bollinger, even Lawrence v. Texas and Roe v. Wade may not be safe. Even if you’re a straight White male, you should be probably be concerned about the possibility of overturning Massachusetts v. EPA or Riley v. California. And while Trump’s shortlist of potential appointees includes quite a few women, nearly everyone on it is dangerously right-wing.

This is not how the system should work. The death of a single person should not result in the loss of rights for hundreds of millions of other people. Democracy and rule of law are supposed to protect us from this kind of capricious government.

What can we do to fix this system? We obviously do need some kind of judicial branch, but it may not need to be a Supreme Court as we know it.

First, we should fight tooth and nail to block whoever Trump nominates, just as Republicans blocked Merrick Garland. Once again I find myself agreeing with Jacobin.

The next step is clearly to pack the court: Congress can pass a law increasing the number of Supreme Court seats, and then the President can appoint new justices to those seats. Add 8 seats to the existing 9 and you regain a strong liberal majority.

After that, pass a Constitutional amendment to prevent future court-packing. Otherwise we just get a cycle of retaliation in which the Supreme Court doubles in size with every new administration. This amendment should also include term limits for justices, so that new justices are appointed on a regular schedule instead of whenever one happens to retire or die.

Let me emphasize that this plan is 100% legal and Constitutional. It feels unfair and underhanded, and it is certainly playing hardball; but there is nothing illegal about it. This is exactly how we need to respond to fascism: Follow all the rules of democracy to the letter, but otherwise it’s scorched earth. No doubt Republicans would complain that we are violating standards and norms—but they’ve done far worse.

In order to achieve this, we need to win elections across the board. The Presidency is not nearly enough; we need to take control of both houses of Congress (to pack the court) and most of the state legislatures as well (to pass a Constitutional amendment).

But this may not be enough. We should ask whether the Supreme Court as an institution is worth keeping around, or if we could replace it with something better.

We clearly do need some sort of judiciary, and probably some kind of top-level court to act as the court of last resort. In that sense, I guess we need a Supreme Court.

But there’s no particular reason justices need to be appointed by the President. The UK recently established a Supreme Court whose justices are appointed by an independent commission. The Court of Cassation in France is huge, with over 85 trial judges and 40 deputy judges; judges each have a relatively narrowly-defined jurisdiction of the types of cases they handle. The High Court of Australia is modeled on the US Supreme Court and is appointed by the Prime Minister; and yet it has a mandatory retirement age of 70.

I’m not aware of any country that directly elects its supreme court justices, but that would be feasible as well. Whether it would be wise is a different matter: There’s evidence that direct election of judges is a major contributing factor to our mass incarceration, because judges want to look “tough on crime” in their election campaigns. And most people simply aren’t well-informed enough to elect judges. But it’s worth considering whether direct election—requiring re-election every few years—would be better than a system where a single appointment puts someone in power for generations.

In any case, it is clear that the Supreme Court is broken. Our rights should not be this fragile.