How to Fix the Supreme Court

I have largely stayed out of the conversation about the Supreme Court on the blog over the past week for a variety of reasons.  First, I have been trying to get out all of my promised blog content for the 10th Anniversary celebration, all of which we'll get to in the next 3-4 days.  Secondly, I wanted to let this sit for a minute.  We have never had a week like this in the entire history of the country, where the Supreme Court actively abandoned all sense of judicial rationality, and six justices essentially staged a judicial coup, which is what this last week amounted toward.  Yes, there are ways around the Supreme Court, which I'm going to illustrate below, but the Court knows that at least with our current congressional makeup (specifically, a Senate that is governed by Joe Manchin & Kyrsten Sinema), movement on virtually anything is delayed until the midterms, where conservatives are expected to win back the House, making codification of Roe, Lawrence, Obergefell, & Griswold impossible.

I think the thing to start out with, and why this feels so defeating, is because there are no good answers here.  Almost every opportunity to limit this Court, specifically winning the 2004 & 2016 presidential elections, Ruth Bader Ginsburg retiring in 2014, and the Democrats holding onto the Senate in 2014 or winning it back in 2018, they have not been able to achieve.  I will not tolerate people saying "what's the point of voting" when faced with five instances where voting surely would've made the difference (and I can come up with a longer list if you want) as literally winning just one of those five instances would've prevented what happened this past week-in fact, Republicans winning strategic elections for the past 40 years is literally how we got here.  But I understand the frustration that in a world where the Democrats control the White House, Senate, & House that there aren't easier options.  There aren't, though, and we have to fight rather than give up.

The reality is, though, that Court reform likely cannot happen until January at the earliest, and in the meantime there are things that we can do.  The first thing is to codify what we think can make it past a filibuster.  This, unfortunately, does not include Roe, as there are not sixty pro-choice votes in the Senate (there are at best 52-53...probably less in terms of a practical bill).  At some point I would love to write an article talking through why Roe hasn't been codified yet, because I'm seeing a lot of blame-throwing that doesn't take into account whether it's been possible in the past (it technically has, but it's never been pragmatically achievable), but that's not today.  What I do think you could find a way to do is codify Griswold, Loving, and Brown, and maybe see what the appetite would be to codify Lawrence (like Roe, I doubt that Obergefell would make it through though I don't know that that's 100% the case as senators like Rob Portman would back it who wouldn't back Roe).  Cynics & in-my-opinion lazy Democrats will be like "why do it, the Court's going to overturn it anyway?!?" and I counter back two things.  One, it puts Republicans on-record about enormously popular bills (all of the freedoms, including Roe, are overwhelmingly backed by the majority of Americans), and we're at the point now where we are trying to play both the short-term and the long-term, and any way we might take a currently-held Republican seat (like, say, the one held by Ron Johnson who would probably vote against all of these bills), we should go after it.  This is scorched earth at this point, and you need to be willing to play to win...we're legislation whipping, and so every seat matters.  The second point, though, is convincing the Democratic Party that the only path forward is Court reform, and the Supreme Court voting against these deeply popular bills would give us more avenues to make Court reform the norm in the Democratic Party.

The question of what kind of court reform can be achieved is important, and how to go about it.  It's doubtful that, say, adding four more justices would be able to get through Congress, both because I doubt that it would satiate the public or get enough votes to overturn the filibuster (btw-the filibuster disappearing is almost certain at this point-it's just a question of which side gains the most by busting it first...it is, however, essential to virtually any plan so we need to back Democrats who want to eliminate it), and because it only solves the problem a short while.  The Republicans can just add four more the next time they have a trifecta, and while this isn't the worst plan (at this point, doing nothing is by far the worst plan), it's also not a good plan.

Rep. Ro Khanna (D-CA)

Luckily, there's a better plan, and weirdly it's already been introduced into Congress by Rep. Ro Khanna (D-CA) with little fanfare.  You can read it here, but the gist is simple-members of the Supreme Court will essentially serve staggered, 18-year terms.  Each new congress, the president would be given the opportunity to appoint a new justice, either to fill an existing opening or if there are no openings, to replace the most senior justice on the Court, who would then be put on Senior Judge status but would not be one of the nine deciding justices.

I love this idea.  It solves several problems that "just adding justices" doesn't.  For starters, if we limited the number of justices a president can appoint each cycle to just one (no more, no less), it would ensure that strategic retirements (which both sides have done recently with people like Sandra Day O'Connor, Anthony Kennedy, David Souter, & Stephen Breyer all retiring so that their preferred party could replace them) wouldn't be possible.  There would be minimal gain from having a justice retire early.  Additionally, mandating that the Senate vote on the Justice's nomination within 120 days of the nomination would ensure we don't have a Merrick Garland situation.  It's possible, of course, that Mitch McConnell could just always ensure that the Republicans vote down a Biden nomination, for example, but that would mean that the voters always got to decide before another opening happened-there'd never be a case like Ginsburg/Barrett again where you rush through a nomination days before an opening.

There are some problems with Khanna's bill, in my opinion.  I think it should either apply to current justices, or we increase the number of justices to 13 to match the number of district courts in concurrence with the bill so that it goes into immediate effect (given how Barrett was appointed, specifically, it feels unfair that we all be stuck with her for forty years).  But overall this is a great bill, and a great piece of reform.  Democrats need to start talking about court reforms like this bill, because it solves a lot of their problems not just now, but in the future.  The Supreme Court is too politicized to not have to face the will of the people regularly.  We should not have presidencies (like Jimmy Carter's) where there are no new justices, and quite frankly we shouldn't have entire four year periods (like those of Bill Clinton's and Barack Obama's second terms) where an election doesn't bring in new justices.  A situation where no justice is guaranteed a spot for life, but instead the Court will consistently reflect the will of the American public is exactly what we need, and we should start pushing our elected representatives to pursue this path.