The Supreme Court has proven they are the reactionary force that Republicans have been building for decades. Now we know. And for all the public dismay about the decision, not enough people are talking about the future. Our next steps are easy to predict: abolish the filibuster, make women’s rights the law of the land, and – most importantly – expand the Court. This would never have worked in a larger court.
Bleak Predictions
First, the bad news: it will get much worse. Now that Justice Alito has crushed Roe, Republicans are already aiming for a national abortion ban. After that, they’ll attack marriage rights, LGBTQ rights, contraception, ‘miscegenation,’ and most women’s rights. That’s on top of their existing attacks on voting rights, civil rights, and the structures of American democracy. Justice Clarence Thomas has already pointed to the following rights and protections he wants to overturn.
The Court’s conservative bias isn’t new. The Court has been attacking civil rights since conservatives gained a simple majority, but they moderated their deepest desires. Now that Republicans have their supermajority, they’re unconstrained. This is about power. Just this session, the Supreme Court battered the separation of church and state, establishing Evangelical Christianity as the de facto American religion. They overrode the well-known meaning of the Second Amendment to create an individual right to arms, a decision that would have appalled the Founding Fathers.
And they’ve only started.
The Fragile Power Structure
The Supreme Court cabal of six fringe conservatives are many things, but they aren’t idiots. They understand that their judicial supermajority is temporary and tenuous. Their power depends on keeping the minority Republican party in control. It’s why the conservatives reliably rule against democratic principles like equal rights and majority rule. If the American majority regains power, the conservative conspiracy won’t remain in authority for long.
The six conservative justices understand their time is short. Don’t expect them to dawdle.
What Needs to Happen
So what? That’s the past. What happens in the future? I don’t know, of course, but here’s one path.
To stop that dystopian possibility, we need to expand the court structurally if we don’t want this conservative conspiracy to tear out the underpinnings of liberal democracy. Bias doesn’t stop.
Here’s what needs to happen:
- Win a workable majority in the Senate. This is the first and biggest obstacle, and it will be hard.
- Republicans are comfortable monkeywrenching the Democratic administration because nobody ever ties their disasters back to the Republican doorsteps.
- The GOP allowed giant monopolies and oligopolies to flourish. The quiet quid pro quo is that these corporations will support Republican politicians and their goals. These gigantic multinational corporations control our news media, social media, marketplaces, communication networks, and most aspects of modern life.
- Republicans already control most state governments. They’ve already implemented so many distortions into the electoral system that Republicans control most local governments despite Democrats winning significantly more votes. They’ve used that power to build a Republican advantage into our electoral structure.
- The next Democratic majority in the Senate must end the filibuster. This is essential, and it’s also good law. The filibuster was always an unintended accident. Otherwise, Republicans can filibuster everything else. Ending the filibuster is necessary.
- We can only restore our rights to abortion, contraception, marriage, and the rest, by enacting federal laws. Our politicians have to pass them.
- Expand the Court. The MAGA wing in this Supreme Court will override every effort to move forward. They understand their power’s fragile basis and won’t give it up easily.
Expand the Court
There are a few proposals for reforming this monstrosity of a Court, but the most effective and workable choice is to expand the court beyond nine. The Constitution doesn’t care. This could be a simple change. And it’s hardly unprecedented.
Look at the 13 federal circuit courts. Federal Circuit Courts sit above the District Courts and just below the Supreme Court, and they range in size:
Each circuit court has multiple judges, ranging from six on the First Circuit to twenty-nine on the Ninth Circuit.
Introduction To The Federal Court System, US Department of Justice.
Most Circuit Courts have a lot of judges because they’re busy places. More justices allow them to split up the caseload. It’s not a complex calculation: more judges means you can handle more cases. And most cases are handled by a randomly assigned panel of three justices. Most political calculations crumble. The Supreme Court, though, is tiny, and can only accept a tiny percentage of the cases that petition for appeal. How does that make sense? It’s a fairly odd decision for such a big country.
End the Court Rigging
Why do we keep the Supreme Court so small? Perhaps, because that makes it easier to pack? I don’t know if that’s true generally, but a small Supreme Court was been essential to this scheme. Republicans were able to rig this court by stealing just three nominations. They had to work single-mindedly on it for decades, but they managed. If we expanded the court to 17, 23, 29, whatever, they could greatly expand their power, and this court-packing nonsense would fall apart. As Elie Mystal suggested, even getting 23 Republican judges to agree on anything would be hard enough. You’d never get them to do the kind of wholesale partisan judicial rewriting we’re living through.
I’m fond of doing more. Stop insisting that new nominees can only graduate from Harvard, Yale, or Princeton law schools. Please God don’t send us one more nominee from Georgetown Prep. They don’t all have to be ivy league graduates, white-shoe lawyers, sitting judges, or even lawyers. Imagine a justice with a social worker’s knowledge sitting on the Court. Now imagine a business owner. Wouldn’t that be valuable?
Make the Supreme Court and its justices representative of America, with Brown, Black, and Asian justices, with half of them women. Include people from different economic backgrounds. Toss in 16-year term limits and we’d have a court that would be steady, consistent, fairer, and much harder to rig.
But expand the Court first.
What We Need to Do
Our end goal has to be to rebuild a rational Supreme Court that resists corruption. For that, we need to ask every politician running for office these questions:
- Will you vote to end the filibuster?
- Will you vote for a national law to protect women’s rights? LGBTQ rights? Civil Rights? Voting Rights?
- Will you vote to expand the Court?
Those are the critical questions during this 2022 election cycle. With the MAGA party pushing for a new Republican autocracy, we may not get a second chance.
