A modest Supreme Court proposal

Democrats should shrink the court to 7 justices, with seat retention based on seniority.

This would get rid of Trump’s appointees with simple congressional majorities and the signature of a Democratic president.

Now that the Supreme Court has been seized by reactionaries, and we face the prospect of the ultimate arbiter of our social and legal conflicts being dominated by partisan judges hostile to civil rights, voting rights, efforts to reduce the influence of money in campaigns, bring health care to more Americans, protect the environment, and the interests of workers, consumers, and minorities, many liberals are pondering what can be done about it.

Another anxiety of liberals is that an activist rightwing court might aggressively block future Democratic administrations’ legislative and regulatory initiatives, hamstringing the other two branches of government and undermining the principle of majority rule in our system of government. We also worry about the future of gays, blacks, Latinos, other minorities, and victims of police violence under the heel of an oppressive Supreme Court swinging hard to the right.

It’s one thing if America’s voters want a rightwing government. But what if a majority of us don’t? Should a Supreme Court majority secured by underhanded means be allowed to impose it on us anyway? Most of us will emphatically say, “No!” But how can we prevent that from happening in a manner consistent with our existing system and laws?

An opinion piece published by CNN on Sunday night (read it here) suggested several possible paths forward for Democrats if they win at least one house of Congress in next month’s midterm elections.

The writer points out there’s historical precedent for simply ignoring unpopular Supreme Court decisions, the most famous modern example being the court’s 1954 desegregation decision, which ultimately had to be enforced with federal troops. As a lawyer and officer of the courts, I can’t advocate, support, or condone ignoring the rulings of our courts. Not only for ethical reasons, but for the practical reason that this would undermine the rule of law and seriously weaken one of the three essential checks and balances in our system of government. But impeachment, or changing the number of justices, are remedies available under the Constitution.

The opinion piece argues, and I agree, that the most widely talked-about potential Democratic response to the confirmation of a nakedly partisan judge in the person of Brett Kavanaugh — impeaching him — is unrealistic. Certainly, constitutionally-sufficient grounds might be found if it can be shown that he lied during his confirmation hearings; and who knows what may be lurking in his financial dealings. But you won’t get the two-thirds Senate majority required for removal; at least, not without improbable Democratic gains in the 2018 and 2020 elections (the Democrats would need a net gain of 18 Senate seats; only 9 GOP-held seats are up for election in 2018, and at least 5 of these are considered safe).

The second most-discussed option is court-packing, i.e. adding more justices — a scheme seriously considered by President Franklin D. Roosevelt in the 1930s when he was confronted by an obstructionist court. There’s no constitutional bar to this; the Constitution doesn’t specify the number of Supreme Court justices, which is determined by Congress and can be changed by simple House and Senate majorities .

But I have a better idea: Shrink the Court to 7 seats, with seat retention based on seniority. Those giving up their seats would be Trump’s appointees: Gorsuch and Kavanaugh. This would restore a liberal majority to the court, and it’s perfectly legal and constitutional. Dirty politics? Sure. But what do you think sitting on Merrick Garland’s nomination was, or the travesty we just witnessed? The real question is whether Democrats will roll over to these outrages, or grow spines and start fighting fire with fire. If the majority of Americans want Democrats, not reactionaries bent on dragging us back into the 19th century, to determine the course of this country then the Democrats must do what is necessary to protect and preserve the principle of majority rule. And if that means depriving an antisocial president of his destructive Supreme Court appointments by any lawful means, they should do it.

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  1. Mark Adams #

    Reduction in the number of judges on the court has happened in the past. In every instance the justices on the court remain until they die or retire. Reduce the number of justices the current ones stay on the court. The President cannot nominate a new judge until there is an opening. This can happen at the appellate or at the district level of the court. The judges current judges remain until attrition makes seats available to be filled. Same thing happens with General’s and Admirals, but since they are not life time appointments they may have to accept a reduction in rank, or retire. Of course they can be fired and even impeached, and the Senate has to approve all those stars, still a political process, but much less politicalized than judges. Also John Marshall was nominated and approved by Congress in a week. Showing the process is political and the party in the majority in the Senate can approve a sitting Presidents nominee and damn well ought to. When the opportunity puts comes to a Democratic President with a Democratic Senate then a liberal or leftist court can occur. It is the little d in democracy saying you gotta take your lumps along with your lettuce greens.
    also Presidents do have a check and balance to deal with a Senate unwilling to even consider a nominee. The President threatens exercises his authority seat his person on the court. A certain President could have seated a Judge Garland on the court and forced the Senate to do something, or do nothing but for at least a year Garland would have been on the court, before the new administration could appoint a new judge. Might have been enough to get a certain Presidential candidate a few more votes in Michigan, Ohio and Pennsylvania where it counted.

  2. Mrrk Adams #

    As too the idea number of Supreme Court Justices I believe it should match the number of circuit Courts. There are 13 Circuit Courts therefore there should be 13 Supreme court Justices. This number of judges would be much to Canadian for most Americans to cotton to though. The Canadian Supreme Court is the closest body in geographic, and judicially that is comparable to our Supreme Court. The number of justices and the additional requirements that must be met are interesting. There is more diversity mandated by law for the Canadian court and judges come from all of Canadas provinces. Their judges do not serve for life but their terms are pretty long. I do think the tenure for life is critical to insure an independent judiciary (and Canada is a parliamentary system of government making their courts less independent of politics) and our Constitution states judges are on the Supreme court for life, so they cannot be removed as RR suggests in his article.
    The most shocking possibility is the new judge might be more liberal or may now be more liberal or at least more likely to uphold those first ten amendments. Time will tell.

  3. theaveeditor #

    Does Mr. Trudeau have the ability to remove a Justice??? I do not think so. I believe they serve till age 75.

    I also dispute your claim that parliamentary system is more the our current system. I suspect Mr. T would have lost a vote of no confidence by now if he were a PM in CA.

  4. Roger Rabbit #

    “Reduction in the number of judges on the court has happened in the past. In every instance the justices on the court remain until they die or retire.”

    The Judicial Circuits Act of 1866, which was in effect for only 3 years and was motivated by a desire to prevent President Andrew Johnson from appointing any justices, was designed to reduce the size of the Supreme Court through attrition.

    That is not what I’m proposing. If Congress reduced the number of justices from 9 to 7, to take effect immediately, 2 of the current justices would have to leave; and Congress could specify which 2 those would be. Thus, it depends on how the statute is written by Congress. Of course, it’s conceivable the Supreme Court might strike down any scheme infringing on appointments already made. But never having been court-tested, this is conjecture.