--Published by The Progressive Magazine, August-September 2021
The U.S. Supreme Court is not a democratic institution. It consists of nine unelected elite lawyers armed with the tools and techniques of judicial review. They, not “the People,” often get the last word on vital questions of social, economic, and even political policy.
Whether this is a smart way to run a democracy has largely been a moot point since the court declared in Marbury v. Madison (1803) that it had the authority to find acts of Congress unconstitutional. The big question today, as always, is whether the court can operate in a politically neutral manner and stay above the partisan fray while discharging its awesome power.
Throughout much of the court’s 2020 term, which commenced last October, it may have been plausible to believe that the high tribunal was charting a moderate course, even with six conservative Republican appointees at the helm. In the mainstream press, a middle-of-the-road consensus had emerged that the court was only incrementally moving to the right, and was by no means the threat that some observers had feared when Donald Trump hastily named Amy Coney Barrett to replace the late liberal icon Ruth Bader Ginsburg.
CNN legal analyst Joan Biskupic expressed the consensus well in a column posted online in mid-June, suggesting that rather than cleaving along partisan lines, the court was displaying more of a 3-3-3 alignment, with Chief Justice John Roberts joining Barrett and Brett Kavanaugh to establish a dominant center-right bloc.
The center-right alliance, Biskupic argued, was proving effective in checking the more extreme impulses of the tribunal’s most doctrinaire members, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.
Whatever validity the consensus may have had was obliterated on July 1, just before the court broke for summer recess, with the release of a stunning 6-3 majority opinion written by Alito in the case of Brnovich v. Democratic National Committee. The ruling tore another gaping hole in the Voting Rights Act of 1965 and signaled that the panel’s rightwing ideologues were fully in control.
At issue in Brnovich was an Arizona statute that criminalizes the collection of mail-in ballots by third parties other than family members and caregivers (a practice called “ballot harvesting”), and a state regulatory policy that requires all in-person ballots, even provisional ones, to be invalidated if they are cast by voters outside of their registered precincts. Democrats contested both measures under Section 2 of the Voting Rights Act, which permits challenges to election practices that discriminate on the basis of race.
Dividing along starkly political lines, Alito and his Republican colleagues handed the state a complete victory. Channeling GOP post-election talking points about nonexistent voter fraud almost word for word, Alito wrote that Arizona was justified in imposing the measures because of its “strong and entirely legitimate . . . interest in preventing election fraud,” which, he asserted, “can affect the outcome of a close election” and “undermine public confidence in the fairness of elections.”
“The Brnovich opinion,” says Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, “will greatly weaken the Voting Rights Act.”
The opinion is especially bad when considered in context. “Eight years ago, in Shelby County v. Holder,” Chemerinsky explains, “the court nullified provisions of the act [found in Sections 4 and 5] that required jurisdictions with a history of racial discrimination to obtain pre-approval” of changes to election procedures from either the Justice Department or a three-judge panel sitting in Washington, D.C.
“Had those preclearance provisions remained intact, many of the new suppression laws we’re seeing in Georgia and elsewhere would never have been implemented,” Chemerinsky says. “Now, the Supreme Court has made it harder for the U.S. Attorney General or others to sue the states under Section 2 when they pass laws that have a discriminatory impact on minority voters.”
The court also handed down another ideologically tinged decision on July 1 with a 6-3 majority opinion written by Roberts in Americans for Prosperity Foundation v. Bonta. The decision struck down a California regulation that requires registered charities and nonprofits to disclose the identities of major donors (those contributing more than $5,000). Americans for Prosperity is a tax-exempt organization long linked to the Koch brothers. Critics of the decision charge that it will open the door to more “dark money” in elections.
The damage caused by the Roberts Court to democratic norms and values runs deep. Harvard Law School professor Michael Klarman summed up the panel’s cumulative record under Roberts’s stewardship in an essay published last February in The Atlantic:
“With their majority on the court, the Republican Justices have undermined labor unions, unleashed money in politics, protected corporations from class-action litigation and punitive-damage awards, curbed antitrust law, eroded the Constitutional right to abortion, invalidated gun-control measures, struck down voluntary efforts by school boards to achieve integration through race-conscious means, and threatened to abolish race-based affirmative action.” (See sidebar for some of the Roberts Court’s worst rulings.)
Klarman’s assessment raises another crucial question: What, if anything, can be done to reverse the high court’s lurch to the right?
In his article, Klarman called for expanding the number of Justices from nine to thirteen, with the four newcomers to be appointed by President Joe Biden while the Democrats control the Senate, albeit by the slimmest of margins. Such a move would create a center-left court that in Klarman’s view would match the center-left orientation of the country as a whole.
Klarman sits on the advisory board of the progressive advocacy group Take Back the Court, founded in 2018 by San Francisco State University professor Aaron Belkin. The board is co-chaired by Harvard Law School professor Mark Tushnet and Color of Change board of directors chair Heather McGhee. It also includes CNN host W. Kamau Bell, former Federal Election Commission chair Ann Ravel, and Yale Law professor Samuel Moyn.
“The Supreme Court is broken,” says Belkin, expounding on his organization’s origin and purpose. “The court was stolen in 2016 when a vacancy opened after Antonin Scalia died, and Mitch McConnell and Senate Republicans would not allow President Obama to fill that vacancy with Merrick Garland.”
Surveying the state of the nation in the aftermath of Trump’s three high-court appointments and the chaos created by the forty-fifth President, he says, “American democracy is hanging by a thread.”
And the Supreme Court, he argues, is a big part of the problem.
“For years now, the court has been sabotaging democracy on behalf of big corporations, the Republican Party, and the party’s donor class,” Belkin says. “With the retirement of Justice Anthony Kennedy in 2018, the entire regulatory administrative state has been placed at risk, throwing everything progressives care about, including the need to respond to the existential crisis of climate change, into jeopardy.”
These are long-term trends, he stresses, rejecting suggestions that big changes at the court are unwarranted because of a handful of recent rulings that uphold LGBTQ+ rights, preserve Obamacare, and reject efforts to overturn the results of the 2020 presidential election. In the final days of this past term, the court also ruled in favor of the off-campus free speech rights of public high school students and sided with college athletes in a dispute with the NCAA that could eventually lead to athletes getting paid for their skills and hard work.
Belkin dismisses the idea that the court is best described as having a 3-3-3 split and a generally moderate orientation. “That’s bullshit,” he counters. “Even the most conservative court sometimes issues progressive rulings. But this remains an exceedingly pro-business court.”
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Indeed, a study released by the D.C.-based Constitutional Accountability Center in early July found that corporate interests prevailed in 83 percent of business-related cases this past term. Says Belkin, “The court is doing the same thing today that it’s been doing for a generation, which is rigging the system and compromising democracy on behalf of the GOP.”
Belkin understands the uphill nature of the fight to expand the court, but he’s used to uphill battles. He was a leader in the gay rights campaign to overturn the military’s “Don’t Ask, Don’t Tell” policy, a struggle that took more than ten years to succeed.
“When we started Take Back,” he says, “hardly anyone was talking about court expansion.” The issue, in fact, had been largely dormant since Franklin Delano Roosevelt’s failed “court-packing” plan of 1937.
That’s no longer true. In June 2020, Take Back the Court signed an open letter urging court expansion together with eight other left-liberal groups, including the Sunrise Movement, the Progressive Change Institute, Friends of the Earth, and 350.org. Since then, according to Belkin, the number of organizations calling for court expansion has swelled to more than fifty.
One of those organizations is Demand Justice, established in 2018 by communications specialist Brian Fallon, the group’s executive director, and attorney Christopher Kang, who holds the title of chief counsel. Both are veteran political hands. Fallon served as Hillary Clinton’s national press secretary during the 2016 presidential race. Kang spent nearly seven years in the Obama White House as a deputy counsel and adviser on legislative affairs.
“The first and foremost change we need to see,” says Kang, “is court expansion to restore balance and legitimacy to the court. We need to fight for a court that stands for justice and equality” for all Americans.
Technically, court expansion is a relatively simple and straightforward proposition. The number of Supreme Court justices isn’t set by the Constitution. It’s set by Congress, which has changed the size of the court seven times, dating back to the Judiciary Act of 1789.
Over the decades, the number has varied from five to ten, when the panel was last expanded in 1863. The court was reduced to nine members in 1869, and has remained at nine ever since.
“Expansion is clearly legal, requires no Constitutional amendment, and is the fastest way to restore balance to the court,” Kang maintains.
The biggest obstacle to expansion is political, and it’s a big one. For the court to be enlarged, legislation would have to clear both houses of Congress, and overcome a Republican-led filibuster in the Senate. But with conservative Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona on record as opposing changes to the filibuster rule in the upper chamber, the prospects for expansion are slim.
Still, progress is being made. Court expansion became a hot topic during the 2020 presidential race, and some leading Democrats have taken up the cause, backing legislation to accomplish the objective.
Both Belkin and Kang were on hand for a press conference in April on the steps of the Supreme Court convened to announce the introduction of the Judiciary Act of 2021 in both the House and Senate. The bill calls for four Justices to be added to the court. It currently has twenty-seven House co-sponsors, including Judiciary Committee chair Jerry Nadler of New York and leading progressives including Alexandria Ocasio-Cortez of New York, Rashida Tlaib of Michigan, and Sheila Jackson Lee of Texas.
However, neither House Speaker Nancy Pelosi nor Senate Majority Leader Chuck Schumer has come out in favor of the measure. Nor has President Biden.
Biden has instead appointed a thirty-six-member bipartisan commission, consisting largely of law professors drawn from both ends of the political spectrum, to study the issue of expansion. The commission held its first public session in May, and is expected to consider other court-reform ideas as well, such as imposing term limits on the tenure of the Justices; drafting an ethics code for the court (which is currently the only federal judicial body not bound by the Code of Conduct for U.S. Judges); and restricting the court’s so-called shadow docket.
The “shadow docket” refers to the growing list of emergency orders the court has issued in recent terms without oral argument or full briefing. Such orders have been used to overturn lower-court rulings in a variety of contexts, permitting the court to quickly lift stays of execution in death penalty cases, and block state-imposed COVID-19 lockdown procedures.
Belkin and Kang have little faith in the commission, which Kang calls “unnecessary” and Belkin lambasts as a “garbage-in-and-garbage-out head fake” that will “waste time and run out the clock when action is urgently needed.”
Meanwhile, as they agitate for expansion, Belkin, Kang, and others are urging Justice Stephen Breyer to resign, which would allow Biden to fulfill his campaign pledge to appoint a Black woman to the court. Breyer, who has been on the court since 1994, will turn eighty-three years old in August.
On April 9, Demand Justice hired a billboard truck to circle Capitol Hill, bearing the message “Breyer, Retire” in neon green lettering. The event, says Kang, was scheduled to coincide with the anniversary of the late Justice John Paul Stevens’s retirement announcement in 2010.
In June, Demand Justice followed up the truck deployment with a full-page ad in Politico calling on Breyer to step down, and an ad with the same exhortation in The New York Times signed by eighteen Constitutional law scholars, among them Belkin and Chemerinsky.
Thus far, however, Breyer has given no hint of leaving. In a speech at Harvard in April, he also came out against court expansion, arguing that such a move would further erode public trust in the courts.
Breyer’s position has disappointed many reform advocates. “If Justice Breyer wants someone with his values and views to take his place,” says Chemerinsky, “he needs to sit down with the Democratic President and Democrats in the Senate.”
In 2014, Chemerinsky urged Ginsburg to resign, but to no avail. “She took great offense,” he recalls. “She gambled and we lost. I don’t want to see Justice Breyer take that same gamble only to lose again.”
Returning to the subject of expansion, Chemerinsky offers a grim warning: “Amy Coney Barrett was forty-eight when she was sworn in. If she stays on the court until she’s eighty-seven, the same age when Justice Ginsburg died, she’ll be a Justice until the year 2059. It is also likely that other conservatives currently on the court will be with her for another decade or more. So, unless we agree to accept a very conservative court for a long time to come, I don’t see any solution but court expansion.”
As unattainable as that goal may seem at the moment, the expansion movement is likely to get louder and larger in the future. “Every time the court comes out with an extreme decision, it makes the argument on expansion and rebalancing for us,” says Kang.
Next term, Kang says, could prove to be the turning point for the movement, as the court is scheduled to hear cases on abortion, gun control, and possibly affirmative action—all hot-button subjects that will place the court directly in the political crosshairs heading into the 2022 elections and beyond.
If Democrats and progressives don’t move the needle on court reform, they will be at least partly responsible for the failure. “The right wing in this country has had a leg up on court packing for a generation,” says University of Colorado law professor Paul Campos, who has endorsed the call for Breyer’s resignation and also supports expansion. “They’ve been laser-focused. Much of the left still subscribes to the delusion that the courts are nonpartisan and neutral.”
Belkin, for his part, pledges there will be no retreat on the court-reform front. “If someone steals your wallet,” he says, “you don’t walk away. You take it back.” The same, he reminds us, applies to democracy.