It’s no longer possible to avoid recognizing the extreme radicalization of the United States Supreme Court. As an email from the Center for Inquiry accurately characterized the latest ruling, it was “not the act of a secular court but of a religious tribunal.”
Since the ascension of Mitch McConnell’s hand-picked culture warriors, we have seen a steady stream of decisions laying waste to the legal underpinnings of American liberties. I have written before about the terrifying implications of the abortion ruling, and why it threatens a much broader array of personal liberties than reproductive autonomy. (In his concurring opinion in Dobbs, Thomas made that threat quite explicit.) The Court has continued its assault on genuine religious liberty, which requires separation of church and state. And its wholesale abandonment of previous precedents on gun legislation–including even the pro-Second-Amendment decision in Heller written by “originalist” Antonin Scalia–is further evidence of a Court majority intent upon rewriting and re-imagining two hundred years of constitutional jurisprudence.
A reader asked me to comment on a report from the Brennan Center proposing changes to the way jurists are elevated to the high court. It is worth emphasizing that the Center issued this paper in 2019, and that it is only one of numerous proposals published during decades of scholarship addressing increasing concerns about the Court’s operations– the analysis was not written as a response to the recent blitz of appalling decisions.
Perhaps the thorniest issue raised by the current operation of the Court involves what the Brennan paper calls “democratic accountability.”
Judicial accountability is different from legislative or executive accountability; the whole purpose of lifetime appointments to the federal bench was to insulate the judiciary from the political passions of the moment–to avoid the sort of “accountability” to political pressure that the other branches quite properly experience. The Executive and Legislative branches were created to be (more or less) directly answerable to “we the people,” but judges were expected to make thoughtful and considered decisions based on the law and facts as they saw them. (Electing judges, as some states do, is a repudiation of that foundational intent.)
On the other hand, the courts certainly weren’t meant to be untouchable quasi-legislative bodies. (Remember when Republicans screamed about “Judicial Activism” and “Imperial Courts”?) There are several ways to insure appropriate democratic accountability without abandoning the original purpose of lifetime appointments.
As the Brennan report noted,
Two fundamental flaws in the Constitution’s appointment system must be fixed. First, there is no regularized system for Supreme Court appointments. Because presidents can appoint new justices only when a sitting justice resigns or dies, justices are appointed unevenly, so that some presidents have many appointments, while others have few or even none. In addition, because justices now serve longer on average than their predecessors, there are significantly fewer appointment opportunities. These developments fray the only formal link between the court and the people — nomination by an elected president and confirmation (or not) by elected senators. In the early days of the republic, when the court was viewed as weak, such defects caused little harm. But today, with the court holding immense power, the lottery appointment system undermines the court’s constitutional legitimacy and erodes the court’s connection to our democracy.
Second, life tenure permits justices themselves to strategically time their retirements so that an ideologically like-minded president can appoint their successor. Recently, this has become the norm. Such ideological control of a Supreme Court seat was never contemplated by the founders. In addition, some justices have remained on the court after a severe decline in their mental or physical capacities, in hopes of lasting until a president who shares their legal and policy preferences takes office. Such ideological control of a Supreme Court seat was never contemplated by the founders when they wrote the Constitution.
In the current system, some presidents appoint an outsized number of justices, some justices outlive the officials who appointed them by many years, and justices can time their retirements to ensure the ideology of their successors. Worse still, a majority of Justices on the current Court were appointed by Presidents who had lost the popular vote.
As a result, today’s Court lacks democratic legitimacy.
Correcting the two flaws described in the linked report would require a constitutional amendment prescribing regular appointments coupled term limits. (Constitutional scholars argue that 18-year terms should be adequate to insulate judges from political pressure.)
Given the daunting barriers to passage of constitutional amendments–not to mention the lengthy timeframe of even successful efforts– several legal scholars advocate enlarging the Court. Changing the number of Justices can be done by statute, and in fact, has been done before. Suggestions for enlarging the Court long preceded the current Court, and were prompted primarily by workload concerns–more recent Courts hand down far fewer decisions than previous ones did.
The author of the Brennan report dismisses that remedy as too partisan, but–as I noted previously–his paper was written before Amy Coney Barrett joined the Court, bringing to five the number of radical religious culture warriors (with the frequent concurrence of the Chief Justice) intent upon dismantling years of constitutional jurisprudence. And five is enough to get the job done.
If the addition of justices is seen as partisan, so be it. The current Court is a thoroughly partisan religious tribunal–and a clear and present danger to the Republic. Ignoring that fact is not an option.