We’ve Done It Before — Reform the Supreme Court!
The future of the U.S. Supreme Court and the federal courts are on the ballot in November. Due to a multi-decade campaign led by the GOP and big business, a super majority on the Supreme Court has been appointed by Republican presidents. The results of this campaign have been profound. The so-called MAGA Republican majority on the Supreme Court has consistently ruled in favor of the GOP, big business, the Christian right and against labor and consumers.
Since the Nixon Administration, 16 out of the last 21 Supreme Court Justices have been appointed by Republican presidents. The last Democratic president to appoint a Chief Justice was Harry Truman all the way back in 1946. This is despite the fact that the Democrats have won the popular vote in 7 out of the last 8 presidential elections.
Some of the most extreme decisions from the high court have come since the appointment of Samuel Alito in 2005 by George W. Bush. Since that appointment, the MAGA Republicans on the Supreme Court have opened the flood gates to secret corporate campaign contributions, neutered the Voting Rights Act, restricted the ability of unions to participate in elections, established right wing Christianity as the quasi-state religion, overruled Roe v. Wade and made the president immune from criminal liability. This has tilted the political playing field in favor of the GOP and the top 1%.
The Republican Supreme Court majority is now a MAGA Republican super legislature accountable to no one. This majority is enacting the most unpopular and extreme GOP priorities by judicial fiat. The six Republicans on the Supreme Court aren’t true judges — they are political operatives. The country and freedom can’t survive twenty to thirty more years of this majority.
The majority is not only a radical, partisan Republican court, it’s also deeply corrupt. Clarence Thomas has accepted $4 million in gifts/bribes from billionaires who have business with the court. Sam Alito has also been the recipient of graft from his billionaire sugar daddies who support the MAGA Republican agenda. John Roberts’ wife has made millions of dollars doing business with law firms who have case in front of the Supreme Court. In 2017, Neil Gorsuch sold his house to a lawyer who did business with the court.
In light of the Supreme Court majority’s corruption, partisanship and extremism, Democrats need to pass proposals to expand the number of Supreme Court seats to 13 and to increase the number of lower court judges. This is very possible since the number of seats on all federal courts is set by statute. A simply majority vote in both houses of Congress is sufficient to change the number of federal judges.
If a President Biden and a Democratic majority Congress propose to increase the number of seats on the federal courts, the usual suspects in the GOP and the “liberal” mainstream media will cry foul and begin to invoke a lot of norms that were blown by up the Republicans. Nixon stole one Supreme Court seat and Trump stole two seats.
The reality is that historical norms support the notion of Congress altering the number of seats on the Supreme Court and the lower federal courts. This norm dates all the way back to our Founding Fathers.
After John Adams lost the 1800 election to Thomas Jefferson and the Democratic-Republicans, a lame duck Federalist majority Congress passed the Judiciary Act of 1801 which eliminated a Supreme Court seat and created sixteen new circuit court judges. This act was aimed at maintaining Federalist control of courts after they lost the 1800 elections. After Jefferson took office, the Democratic-Republican majority in Congress repealed the Federalist’s attempted judicial power grab by passing the Judiciary Act of 1802.
The judicial wars flared up again during the Lincoln Administration. In 1863, a Republican majority Congress added a tenth seat to the Supreme Court to create a GOP appointed majority on the high court. Subsequently, the Republicans in Congress reduced the number of Supreme Court justice to seven to prevent Andrew Johnson from picking anyone new to the court. Once Grant was elected president, his Republican allies in Congress raised the number of Supreme Court seats back to nine, where it has stood ever since.
Perhaps the most famous court reform battle was in 1937 when Franklin Roosevelt attempted to increase the number of Supreme Court justices to 15. During Roosevelt’s first term, a GOP appointed majority threw out most of the New Deal on spurious legal grounds. Roosevelt’s plan was largely thwarted when one of the GOP appointees flip flopped and ruled that the minimum wage was constitutional. This was the famous “switch in time that saved nine.”
The most recent change to the federal judiciary occurred in 1978 when a Democratic majority Congress passed a bill that expanded the number of seats on the lower courts by 152 or 33%. This was one of Jimmy Carter’s unsung accomplishments.
Before Carter took office in 1977, the federal judiciary largely consisted of white males. Carter used this opportunity to appoint a record number of women and minorities to the federal bench. Approximately, 22% of his judicial picks were non white and 15% were women. Perhaps his most famous pick was when he appointed Ruth Bader Ginsburg to the powerful U.S. Court of Appeals for the D.C. Circuit in 1980.
What history teaches us is that reform of the federal courts is a long time American historical tradition. The likes of John Adams, Thomas Jefferson, Abraham Lincoln, Ulysses Grant, Franklin Roosevelt and Jimmy Carter have all been involved in court reform efforts.
The Supreme Court and the federal courts are in need of reform because they no longer reflect the intent of the Founding Fathers and the authors of the 14th and 15th Amendments. (Historians have referred to these post-Civil War amendments as the “Second American Revolution.”) The authors of the Constitution envisioned a country in which the people ruled — not a hereditary aristocracy. That’s why they broke with King George III in 1776.
America had a second founding after the Civil War. Abraham Lincoln and the supporters of the 14th and 15th Amendments believed in a nation which lived up to our ideal that “all men are created equal” as well as a multi-racial democracy. The 14th and 15th Amendments guaranteed all Americans the equal protection of the laws and the right to vote.
Unfortunately, the current Supreme Court majority clearly favors the Republicans, big business, the top 1%, right wing Christians and partisan and racist voter suppression laws. They clearly are acting in a way contrary to our history and long time traditions. That’s why this country needs court reform in the event of a Democratic majority in 2025.
If we elect Joe Biden president along with a Democratic Congress, this country can live up to its high ideals deeply rooted in this nation’s history and tradition. We will get the change this country needs so badly. Now let’s get it done!