Reforming the SCOTUS as non-negotiable goal
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As Paul Waldman points out, this is now Job One for any Democratic administration, and hopefully the consequences of the pitifully inadequate gestures of the Biden administration — appointing a commission to make some recommendations — will serve as a cautionary tale:
The truth is that for almost its entire history, the court has been a fundamentally reactionary force, defending the wealth of the wealthy and the power of the powerful against claims to justice or equality. But because of a brief liberal period in the court’s jurisprudence running roughly from Brown v. Board of Education in 1954 to Roe v. Wade in 1973, many on the left came to see the court as a natural ally, even as it moved further and further to the right.
What conservatives realized, on the other hand, was that if they could capture the court then nothing would be out of their reach. “Checks and balances” notwithstanding, the judiciary has a unique ability to nullify the work of the other two branches. So moneyed conservative interests set out on an effort stretching over decades to create a court that didn’t just lean right, but was in the firm control of movement-bred conservatives who were committed to advancing their ideological and policy objectives and saw no limits on their ability to do so.
The right understood what they could do with a court like that, and now they have it. Principles and precedents have become a joke, while modes of analysis like “originalism” and “textualism” are deployed in radically different ways depending on which party will benefit from the outcome. When a Democrat is president, the court is extraordinarily aggressive in seizing the power to decide policy; when a Republican is president, he can largely do as he likes, even commit all the crimes he wants. They do this while allowing billionaires with interests before the court to shower them with gifts, because in this world, ethics are for suckers.
That’s why Supreme Court reform is the sine qua non of any progressive reform agenda. Without it, nothing else matters, because this court will use its power to strike down anything meaningful Democrats try to do.
There are plenty of Supreme Court reform ideas out there from which to choose. The first is to expand the size of the court, immediately adding new justices to rebalance the body. Keep in mind that the Court’s size has been altered many times over its history, most recently in 2016 when Republicans contracted it by refusing to allow Barack Obama to appoint a member after the death of Antonin Scalia, then expanded it again once Donald Trump took office.
Beyond expanding the court, Congress should enact 18-year term limits, consider stripping the court of jurisdiction over certain kinds of cases, and create strict new ethics standards to prevent the kind of naked corruption we’ve seen in recent years. That is all in Congress’ power to legislate.
Republicans will object vigorously to these reforms, and there’s no guarantee that Democrats would be able to pass them. But they have to try. As long as we live under the tyranny of this court, our democracy will continue to erode.
The commonly made claim that term limits would require a constitutional amendment is false: First, there’s no reason Congress can’t enact legislation limiting service on the SCOTUS to eighteen years, while allowing justices who reach that limit to maintain senior status on the judiciary — in other words they would still be federal judges, which is all that the constitutional language requires. Second, there’s actually a very strong historical argument that the “good behavior” clause of the Constitution should be interpreted much more aggressively by Congress, instead of being treated as merely a restatement of the fact that federal judges can be impeached (more on this in another post).
And good on Waldman for making the point, which I haven’t seen made before, that Mitch McConnell’s Senate functionally changed the size of the SCOTUS twice in 2016 and 2017, to accomodate Antonin Scalia’s Nantucket sleigh ride to Hell.
In any event, Waldman’s central point — that thoroughgoing reform of the SCOTUS is an absolute imperative — is absolutely correct. Among other things this means the filibuster has to go, but that’s just a bonus here as opposed to a cost of doing business.