How to pack the court

Jul 10 JDN 2459790

By now you have no doubt heard the news that Roe v. Wade was overturned. The New York Times has an annotated version of the full opinion.

My own views on abortion are like those of about 2/3 of Americans: More nuanced than can be neatly expressed by ‘pro-choice’ or ‘pro-life’, much more comfortable with first-trimester abortion (which is what 90% of abortions are, by the way) than later, and opposed to overturning Roe v. Wade in its entirety. I also find great appeal in Clinton’s motto on the issue: “safe, legal, and rare”.Several years ago I moderated an online discussion group that reached what we called the Twelve Week Compromise: Abortion would be legal for any reason up to 12 weeks of pregnancy, after which it would only be legal for extenuating circumstances including rape, incest, fetal nonviability, and severe health risk to the mother. This would render the vast majority of abortions legal without simply saying that it should be permitted without question. Roe v. Wade was actually slightly more permissive than this, but it was itself a very sound compromise.

But even if you didn’t like Roe v. Wade, you should be outraged at the manner in which it was overturned. If the Supreme Court can simply change its mind on rights that have been established for nearly 50 years, then none of our rights are safe. And in chilling comments, Clarence Thomas has declared that this is his precise intention: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” That is to say, Thomas wants to remove our rights to use contraception and have same-sex relationships. (If Lawrence were overturned, sodomy could be criminalized in several states!)

The good news here is that even the other conservative justices seem much less inclined to overturn these other precedents. Kavanaugh’s concurrent opinion explicitly states he has no intention of overturning “Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015)”. It seems quite notable that Thomas did not mention Loving v. Virginia, seeing as it was made around the same time as Roe v. Wade, based on very similar principles—and it affects him personally. And even if these precedents are unlikely to be overturned immediately, this ruling shows that the security of all of our rights can depend on the particular inclinations of individual justices.

The Supreme Court is honestly a terrible institution. Courts should not be more powerful than legislatures, lifetime appointments reek of monarchism, and the claim of being ‘apolitical’ that was dubious from the start is now obviously ludicrous. But precisely because it is so powerful, reforming it will be extremely difficult.

The first step is to pack the court. The question is no longer whether we should pack the court, but how, and why we didn’t do it sooner.

What does it mean to pack the court? Increase the number of justices, appointing new ones who are better than the current ones. (Since almost any randomly-selected American would be better than Clarence Thomas, Samuel Alito, or Brent Kavanaugh, this wouldn’t be hard.) This is 100% Constitutional, as the Constitution does not in any way restrict the number of justices. It can simply be done by an act of Congress.

But of course we can’t stop there. President Biden could appoint four more justices, and then whoever comes after him could appoint another three, and before we know it the Supreme Court has twenty-seven justices and each new President is expected to add a few more.

No, we need to fix the number of justices so that it can’t be increased any further. Ideally this would be done by Constitutional Amendment, though the odds of getting such a thing passed seem rather slim. But there is in fact a sensible way to add new justices now and then justify not adding any more later, and that is to tie justices to federal circuits.

There are currently 13 US federal circuit courts. If we added 4 more Supreme Court justices, there would be 13 Supreme Court justices. Each could even be assigned to be the nominal head of that federal circuit, and responsible for being the first to read appeals coming from that circuit.

Which justice goes where? Well, what if we let the circuits themselves choose? The selection could be made by a popular vote among the people who live there. Make the federal circuit a federal popular vote. The justice responsible for the federal circuit can also be the Chief Justice.

That would also require a Constitutional Amendment, but it would, at a stroke, fundamentally reform what the Supreme Court is and how its justices are chosen. For now, we could simply add three new justices, making the current number 13. Then they could decide amongst themselves who will get what circuit until we implement the full system to let circuits choose their justices.

I’m well aware that electing judges is problematic—but at this point I don’t think we have a choice. (I would also prefer to re-arrange the circuits: it’s weird that DC gets its own circuit instead of being part of circuit 4, and circuit 9 has way more people than circuit 1.) We can’t simply trust each new President to appoint a new justice whenever one happens to retire or die and then leave that justice in place for decades to come. Not in a world where someone like Donald Trump can be elected President.

A lot of centrist people are uncomfortable with such a move, seeing it as ‘playing dirty’. But it’s not. It’s playing hardball—taking seriously the threat that the current Republican Party poses to the future of American government and society, and taking substantive steps to fight that threat. (After its authoritarian shift that started in the mid 2000s but really took off under Trump, the Republican Party now has more in common with far-right extremist parties like Fidesz in Hungary than with mainstream center-right parties like the Tories.) But there is absolutely nothing un-Constitutional about this plan. It’s doing everything possible within the law.

We should have done this before they started overturning landmark precedents. But it’s not too late to do it before they overturn any more.

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.