The Supreme Court's Supermajority Makes it Corrupt. Here Is One Idea to Fix It.

 

      There is an unspoken reason why the upcoming election must result in Democratic Party control of the House, the Senate, and the Presidency.  Such an outcome would permit the Congress to increase the number of Supreme Court justices to eleven and permit a reelected President Biden to appoint two moderate, center-left justices.  This would end the conservative supermajority while preserving a conservative majority of one vote. 

     The Supreme Court makes it possible for Congress to avoid difficult political decisions.  Rather than carry out their legislative responsibilities, Members of Congress find it easier to punt to a court whose members have lifetime tenure, whose decisions are final, and who, therefore, pay no political price.  This is what Congress did following the court’s judgement for the plaintiff in the 1973 case, Roe v. Wade.  Congress failed to follow-up by codifying the ruling in law.  This failure made it very easy for the court, composed of a supermajority of conservatives, to overturn the ruling in 2022 without Congressional involvement and against the preference of a majority of Americans.  Effectively, the supermajority conservative court is empowered to legislate from the bench free of any real constraint.  This is precisely what the court did in Dobbs v. Jackson Women's Health Organization and what it might do in Trump v. United States, the Presidential immunity case.

      The Supreme Court has lost much of the trust it once had from the American people.  Its approval rating has fallen 20% from 2002 to 2022 (the year of the Dobbs ruling).  Two of the most important factors in this downward trend are legitimacy and unpopular rulings.  Diminished legitimacy stems from a Republican-controlled Senate’s naked zeal to bypass norms to create a conservative supermajority that will remain seated for years if not decades.  This zeal was manifested by the Senate’s refusal to consider President Obama’s nomination of Judge Merrick Garland in March 2016 while rushing through Justice Amy Coney Barrett’s nomination in September 2020.

      Unpopular rulings are exemplified by Dobbs and its consequences which have not only deprived women of the fifty-year right to abortion access but are more generally depriving women of equal access to health care.  While many states are remedying this outcome through public referenda and constitutional amendments, it is unlikely that all states will act in this way resulting in a state’s rights nightmare that the current Supreme Court is unlikely to correct.  Women who live in states with draconian anti-abortion laws will, therefore, not enjoy a fundamental right of all Americans, equality under the law.

      A Democratic President and Congress could destroy the conservative supermajority and hand the majority to Democratic-appointed justices by increasing the number of justices to thirteen and appointing new justices who are center-left or even liberal in their legal philosophies.  Adding four justices to break the conservative supermajority, however, would likely result in dangerous political upheaval with unknown consequences.  There is an alternative.

      If President Biden is reelected with Democratic majorities in both Houses of Congress, the two congressional bodies could add two seats to the court (for a total of eleven).  President Biden could then appoint two center-left justices.  This would have the effect of eliminating the conservative supermajority while preserving the conservative majority.  The composition of the court would return to something more like it was when Justices Scalia, Kennedy, and Ginsberg sat on the bench.  A smaller majority would promote moderation in rulings by empowering potential swing votes to act because they perceive that their votes may have meaningful effect just as they did when the three aforementioned Justices sat.  At the same time, such a reordering of the court would be less likely to promote upheaval if sold as a reasonable compromise that is in everyone’s best interest.

      To achieve this goal, we must elect Democratic majorities in both Houses of Congress and reelect President Biden.  Such an outcome, therefore, is even more urgent.