The broad immunity the Supreme Court recently granted to former President Donald Trump is the latest example of its six conservative justices acting like Republican allies. Recent decisions striking down the bump stock ban and weakening the power of federal agencies continue the Court’s pattern of placing judges at the center of policymaking while excluding officials who are experts on policy issues.
A Republican-controlled and power-hungry Supreme Court cannot be improved simply by Democrats winning elections. The conservative justices are not particularly old (the oldest are Justices Samuel A. Alito Jr. at 74 and Clarence Thomas at 76). Justices Alito and Thomas’ opinions and public comments, as well as the controversy over their spouses, make it highly unlikely that they will retire, even if they could be replaced by liberal justices.
So even if Democrats win the 2024 and 2028 presidential elections and maintain control of the Senate for the next few years, America could see another decade of six presidents who implement policies far to the right of the country as a whole.
I can’t wait that long. This right-wing judicial dominance must end. Over the past few years, there have been a number of proposals from the left to rein in Roberts’ Supreme Court. Two of them are essential. First, Democrats need to pass legislation to add four more justices to the Supreme Court the next time they control the House, the Senate, and the presidency.
This would need to be combined with a second policy, requiring a supermajority vote by the court to overturn federal laws or federal agency decisions.
What these ideas have in common is an acknowledgement of facts that everyone knows but that the judges themselves and many lawyers refuse to acknowledge: It is very hard to determine what is legal and constitutional outside of something clearly defined in the Constitution or statutes, such as a four-year presidential term. The doctrines that supposedly guide the judges, whether on the right (“fundamentalism” or “originalism”) or the left (the “positive liberty” of retired liberal Justice Stephen G. Breyer), are neither formal nor universally agreed upon.
Justices’ positions on whether abortion should be allowed inevitably reflect their broader policy preferences. The current Supreme Court has six Republicans who were selected because they were expected to consistently support right-wing causes. This selection and vetting process has worked, resulting in one of the most conservative courts in recent history.
The Supreme Court makes ideological and partisan decisions and should be accountable to the voters and the democratic process just as much as members of Congress and the President. That is the purpose of “adding the court.” Democrats will gain seats and a majority if they get the votes. Republicans will almost certainly do the same.
In a paper they co-authored, four scholars — Adam Chilton, Daniel Epps, Kyle Rozema, and Maya Sen — estimate that if both parties continued to add seats each time they took power, the Supreme Court would have 23 justices by around 2070. That’s more than double the current number, but not too many.
But I do not want a Supreme Court where Chief Justice Ketanji Brown Jackson and six liberals constantly block policies passed by a Republican Congress and signed by a Republican President. Unelected justices, whatever their ideology, should not constantly override the decisions of members of Congress, the President and federal agencies.
Presidents and members of Congress are not necessarily smarter than judges, but they are more accountable to the people. If the people don’t like a policy put in place by Congress or the president, they can vote it down. The leaders of independent agencies are primarily appointed by the president or Congress and usually have term limits, creating a clear, democratic path to replacing them.
Judges, in contrast, have enormous power and life tenure.
Thus, to strike down a federal agency action or a federal law, in whole or in part, at least 75 percent of the Supreme Court’s justices must vote in favor. If the Supreme Court had 13 justices, 10 of them would need to vote in favor, presumably reflecting broad bipartisan agreement that the law is improper. If lower federal judges strike down legislative and executive branch actions, the decision cannot stand unless 10 of the Court’s 13 justices vote in favor. (Law professors Ryan Doerfler and Samuel Moyn have been some of the most vocal advocates of curtailing judicial power, including the supermajority requirement.)
Because judicial review is not enshrined in the Constitution, this proposal would not require an amendment, just an act of Congress. It would require overturning the Supreme Court’s history of ruling by simple majority, and this change could be rejected by the current Supreme Court. This is another reason why more judges are essential.
I don’t think this proposition would get the courts to overturn many of the conservative laws and government actions that I oppose, but there is a clear path to changing those policies: if a candidate I support wins the election.
The obvious and important counterargument to this idea is that without strong judicial review, Congress and the President could pass extreme laws without any remedy. But as Harvard Law Professor Nicholas Bowie has argued, in reality the Supreme Court has never been a robust defender of individual or minority rights. Brown v. Board of Education Perhaps the Court’s most famous decision, Dred Scott v. Sanford and Plessy v Ferguson It truly represents that jurisprudence.
The Roberts Court has taken some steps in keeping with the Court’s long history, including weakening the Voting Rights Act. do not have Standing up for women, racial minorities, and other groups who are disadvantaged in America.
It’s not worth giving a simple majority of Supreme Court justices near-total power to strike down good laws just because they occasionally step in to strike down really bad laws.
What about state laws? After all, the United States is a federal, but one country. Federal law should be supreme. Therefore, I do not support raising the bar to override state laws. We do not want to encourage a problematic trend of right-wing state legislators adopting policies that clearly violate federal law.
These proposals may seem radical and unrealistic, but they are necessary. The Supreme Court has made it easier to turn a rifle into a machine gun, but harder to investigate a president who tried to overturn the election results. That’s crazy. With these six justices, no policy favored by liberals is safe.
“Why should courts govern a democracy? The answer is that they shouldn’t,” Bowie wrote a few years ago.
Before they had a majority on the Supreme Court, conservatives complained about “activist judges.” I don’t really trust conservatives. Today’s right-wing legal movement is brown The ruling forced America to give black students the same educational opportunities as white students.
But maybe conservatives have a point: I don’t want to continue living in a country ruled by right-wing activist judges, so if that means left-wing judges have to give up writing their opinions into law, I’m willing to accept that trade-off.
We’re going to add more judges to the courts and less power to the courts.
