By Ardian Shaholli
Last September, the Supreme Court ordered that Texas’ SB 8 may take effect. The law bans abortions after six weeks (with no exception for rape or incest) and offers up to a $10,000 bounty for private citizens who sue abortion providers or those aiding in abortion access. Since the court issued the ruling via the “shadow docket,” it functioned as an unelected legislature. By clandestinely overturning forty-eight years of precedence in the middle of the night – without allowing oral arguments – it shed any pretense of legal impartiality. Despite winning the popular vote in seven out of the last eight presidential elections–since 1969–democratic presidents have appointed only four out of the last 18 Supreme Court justices. President Joe Biden and a unified Democratic Congress should propose legislation expanding the Supreme Court to overcome this ideological imbalance.
HISTORY OF JUDICIAL RESTRUCTURING
Article III, Section 1 of the U.S. Constitution grants broad latitude to Congress in determining the composition of the Supreme Court and creation of lower courts. Initially, the Judiciary Act of 1789 established a Supreme Court with six justices.
Historically, Congress has wielded significant power over the judiciary. From 1800 to 1932, it attempted to restructure the courts as a political constraint on 833 occasions. Throughout U.S. history, only federal judges (eight altogether) have been impeached and convicted successfully.
Most of these reforms pertain to appellate and district courts. Surely, the Supreme Court has been shielded from the political passions of the system within which it operates, right? Wrong. American politics has been polarized from the outset. The Supreme Court never has and never will function “above the fray” of politics.
A bevy of examples supports this claim. After Thomas Jefferson’s triumph in the 1800 election, a Federalist Congress reduced the size of the court from six to five preventing Jefferson from filling a vacancy. After Jefferson’s Democratic-Republican Party reclaimed Congress, the number of justices inched up to seven by the end of his tenure. Abraham Lincoln increased the size of the court to 10 to avoid the nullification of his war policies. After Lincoln’s assassination in 1865, Congress dissolved two of those seats to prevent Andrew Johnson from hobbling Reconstruction initiatives. Franklin D. Roosevelt’s failed court-packing scheme (The Judicial Procedures Reform Bill of 1937) resulted in material benefits for workers. The threat of court expansion to 15 members pressured Justice Owen Roberts to side with his liberal colleagues in upholding the Social Security Act, minimum wage laws, and the National Labor Relations Act.
IMPRACTICALITY OF REDUCING COURT PARTISANSHIP
Is my argument nakedly partisan? Yes. However, it is naive to assume the Supreme Court is not partisan. The president and the Senate appoint and confirm a fallible human being to a lifetime position where they can influence policy for at least a generation. It is illogical to assume the high stakes nature of a Supreme Court vacancy would not elicit a partisan response from voters and politicians alike.
There is no law stipulating that the Senate grant a hearing to a president’s Supreme Court nominee. The idea of the opposition party yielding hearings to presidential nominees is based entirely on norms. Unspoken norms are no match for Mitch McConnell and his caucus. Senate Republicans were undeterred in denying Merrick Garland a hearing but fast-tracking Amy Coney-Barrett’s nomination. Despite President Barack Obama nominating Garland 237 days prior to the 2016 election, McConnell manufactured an erroneous “precedent” that no Supreme Court nominee had been appointed during a presidential election year. Yet, all but one Republican senator voted to confirm Coney-Barrett 8 days before the 2020 election.
If politics truly is the art of the possible, Democrats cannot expect to get anything done if they fail to acknowledge America’s blatantly partisan reality. Politics is often characterized as a horse race. Is the solution to relegate it to a perpetual Globetrotters-Generals game?
In the United Kingdom, Supreme Court justices are appointed by an independent commission, undergo a multi-tiered vetting process, must possess a set of basic qualifications, and are subject to term limits. This is a template for achieving a less partisan court. However, unlike Supreme Court expansion, pursuing a new court model altogether would require a constitutional amendment. The onslaught the Republican-appointed majority of Chief Justice John Roberts’ court has unleashed on democracy (Citizens United v. FEC), universal health care (NFIB v. Sebelius), voting rights (Shelby County v. Holder), labor rights (AFSCME v. Janus), and now reproductive rights requires a swift response.
The Shelby County decision is particularly egregious. The Voting Rights Act of 1965 is authorized by the Fifteenth Amendment and does not violate any other constitutional provision. If the crux of judicial review revolves around evaluating the constitutionality of laws, the court’s conservative majority clearly overreached by overturning this law. The adoption of new voter restrictions in 14 states and the introduction of 361 total voter suppression bills this year alone proves the overwhelming need for restoring the full provisions of the Voting Rights Act.
While Chief Justice Roberts is distinctly more moderate than his five conservative colleagues, his rulings are not immune to ideological preference. In Sebelius, the Court ruled that federal funds could not be withheld from states as a precondition for Medicaid expansion. Roberts asserted that the expansion provision of the Affordable Care Act violated the Tenth Amendment because Congress was imposing extralegal regulations on the states. However, this legal rationale is dubious. The provision does not grant Congress the authority to overrule the internal affairs of state governments. Furthermore, he denounced the policy as an attempt to achieve universal coverage rather than as a revision to Medicaid. He failed to clarify the unconstitutional dimension of this objective. Why should the political preference of an unelected judge outweigh the health care needs of two million Americans?
COURT EXPANSION PLAN
There is no set method for expanding the Supreme Court. The Judicial Procedures Reform Bill of 1937 provides a template. Under this proposal, the president could appoint two justices for every justice over the age of seventy who refuses to retire. Under Roosevelt, this could have swelled the court to 15. Similar legislation would now result in the addition of four justices (assuming neither Alito nor Thomas retire). The 1937 initiative failed to pass through Congress at the time, however, the mere possibility of expansion led to critical concessions. Such a reform championed by President Biden and Congress could signal to the Supreme Court that serious ramifications might stem from failing to codify and reaffirm reproductive rights.
This is only the fourth time in the last 40 years that Democrats control the presidency and both chambers of Congress. In the future, Republicans might take advantage of whatever court-packing scheme the Democrats choose to implement. However, Democratic inaction stemming from overanalyzing a prospective Republican strategy has led, in part, to this dire situation. Overall, this indispensable opportunity to cultivate a more just nation must not be squandered over an illusory and antiquated view of the Supreme Court as apolitical.