LAW | EQUALITY
Add 7 Seats to the Court
America needs 16 Supreme Court Justices (or more).
THE TIME HAS COME to accept that Senate Republicans will confirm Judge Amy Coney Barrett to fill Justice Ruth Bader Ginsburg’s Supreme Court seat.
Yes, it is unprecedented to confirm a new Justice this close to the election. And yes, every single Republican Senator who refused to consider Merrick Garland is a hypocrite. But Justice Barrett is hurtling toward the Court like a meteor, whether we like it or not. We need to brace ourselves for the real fight: the imminent battle to almost double the size of the Court in 2021.
For 50 years, the American Right has worked scrupulously to capture power at all levels of the federal and state judiciaries — even while progressive policies have gained the support of the vast majority of voters.
If Democrats take the Senate and the White House — despite inevitable legal efforts to protect GOP incumbents in both institutions — then they should immediately reshape the federal courts in alignment with the popular will.
They should add 7 Justices and expand the lower appellate courts for 3 reasons: it’s only fair; a 6–3 conservative Court is unacceptable; and, it’s easy.
It’s Only Fair
According to FiveThirtyEight’s Presidential Forecast, Biden has an 89% chance of winning the popular vote. If that happens, then Democrats will have won the popular vote in 7 of the 8 presidential elections from 1992 to 2020.
So, in January, when the next presidential term begins, liberals will have won the popular vote in 88% of modern presidential elections, but will comprise only 33% of the Court. Even if President Biden adds 7 seats, conservatives will still be overrepresented by this popular vote metric.
Since Republicans will have won the popular vote in only 12% of contemporary presidential elections, they should be grateful to have staffed 38% of the Court — i.e., 6 out of 16 seats.
With the exception of George W. Bush’s 2004 reëlection, the U.S. electorate has — on a popular vote basis — rejected right-wing ideology and jurisprudence in every presidential contest of the past 30 years.
By this metric, adding 7 seats is a generous compromise.
A 6-3 Conservative Court is Unacceptable
Even the Right’s existing majority on the Court — which has existed in basically its current 5-seat form since the Nixon years — frequently comes within a single vote of extremist catastrophe.
In the final weeks of the Court’s most recent term, the Justices came frighteningly close to issuing devastating decisions regarding not only Native American reservations, but also Trump’s immunity from criminal proceedings.
In McGirt v. Oklahoma, every Republican-appointed Justice except for Gorsuch voted to ignore a binding treaty with the Creek Nation.
And in Trump v. Vance, every Republican-appointed Justice except for Roberts favored a higher standard for advancing criminal prosecution against a President.
Just a few weeks earlier, Roberts provided the crucial 5th vote to strike down absurd abortion restrictions in Louisiana and to reverse an order that would’ve rescinded DACA protections.
Justice Barrett may provide the decisive vote that Alito, Thomas, and Kavanaugh need in order to let states impose draconian barriers to reproductive rights; to oppress, displace, and marginalize the descendants of Native Americans; and, to insulate Republican politicians from criminal charges.
And, of course, Barrett will almost certainly help reverse Gorsuch’s recent opinion in Bostock v. Clayton County, which extended Title VII protections to gay and trans employees.
It’s important to remember that it doesn’t really matter whether the nominal “median” of the Court is Roberts, or Gorsuch, or even Barrett herself.
What drives the political dynamics of the 6-3 Court will be the new reality that its truly psychotic fringe will be able to write binding precedent with any two of those three people.
In other words, the core of the conservative wing — Kavanaugh, Thomas, and Alito — will be able to go farther than they could have when they needed the votes of both Roberts and Gorsuch.
To the extent that the particular “swing vote” on the Court does matter, adding Barrett to the Court may affect key language in landmark right-wing opinions. When the Court decides a case in conference, the most senior Justice in the majority gets to assign the opinion, and the most senior Justice in the minority gets to assign the dissent.
(Yes, the most senior Justice can assign the opinion to himself. Every opinion Roberts has written on the Court has been self-assigned, since the Chief Justice always has the most seniority.)
Effectively, this means the “least persuaded” Justice gets to write the opinion in every landmark case.
Think about it: if either wing of the Court wants to do something bold, then it can’t have a true partisan write an extreme opinion that alienates the 5th vote. Remember — Justices can switch their votes while the dissent and majority opinions are circulating.
So, if a Justice doesn’t like the brass-knuckled opinion that a hardline colleague has written, then he might switch his vote and provide the 5th vote to make the dissent a binding opinion.
Thus, it’s safer to assign the opinion to the most moderate Justice in the majority, so he (or she) sticks with the rest of the majority.
Currently, Roberts writes almost every controversial opinion about almost every issue.
Roberts is both the median and the most senior Justice, so he assigns himself the opinion in most major 5-4 cases — except when Gorsuch votes with the liberals.
Whenever Gorsuch has voted with the liberals, the senior Justice on the liberal wing — a certain Ruth Bader Ginsburg — has assigned him the opinion, thereby allowing him to write a holding that he feels comfortable signing.
Now, that vaunted “Senior Liberal” position is held by Stephen Breyer, who is significantly more moderate.
If Barrett succeeds Ginsburg, then conservatives on the Court will be able to implement their judicial agenda without Roberts, which means Thomas — possibly the most far-right Associate Justice since the Civil War — will be free to assign crucial opinions to himself, Kavanaugh, and Alito, without any fear that one of the 5 Justices joining the opinion will flake.
Not only will the outcomes of Supreme Court cases change; but also, different cases will reach the Court.
To understand why, recall the “Rule of Four.”
Under the Rule of Four, a petition for a writ of certiorari (i.e., a request to argue before the Court) is successful if at least four of the nine Justices vote to grant it.
The conservative fringe of the Court — Kavanaugh, Alito, and Thomas — will be able to grant any petition they want if they can persuade just one of their three conservative colleagues: Barrett OR Roberts OR Gorsuch.
This new dynamic will increase the rate at which the liberal holdings of lower courts are reversed.
It’s Easy
The current size of the Court (nine seats) is a direct result of a political dynamic similar to the one that will soon emerge in our own times.
150 years ago, a progressive Congress needed to take active measures to undo the damage of reactionary, proslavery jurisprudence.
Fed up with both the Dred Scott v. Sandford (1857) decision and the conservative politics of recently-departed President Andrew Johnson, left-wing legislators enacted the Circuit Judges Act, also known as the Judiciary Act of 1869:
§ 1 . . . [T]he Supreme Court . . . shall hereafter consist of the Chief Justice of the United States and eight associate justices . . . ; and for the purposes of this act there shall be appointed an additional associate justice of said court.
[§ 2 provides for the appointment of a new circuit judge to lead each federal circuit.]
§ 3 . . . [C]lerks of the circuit courts . . . shall be appointed by the circuit judge of that circuit . . . .
[§ 4 requires Supreme Court Justices to “ride circuit” — i.e., preside over lower appellate courts — which isn’t really a practice anymore.]
[§ 5 lets judges continue to draw their full salary from retirement until death, as long as they retire after their 70th birthday and after their 10th year on the bench.]
150-year-old legislation isn’t especially fun to read, but it’s important to realize how sweeping and short that bill really was.
It consists of roughly 500 words, organized into nine or ten substantive sentences.
Brevity notwithstanding, the Judiciary Act of 1869 did 4 incredible things:
- added a seat to the Court (and canceled the abolishment of a seat they had scheduled to expire while Johnson was President);
- empowered President Ulysses S. Grant to appoint a circuit judge to oversee Reconstruction in every federal circuit;
- enabled those circuit judges to ensure that law clerks at the appellate level supported the full abolition of slavery; and,
- incentivized judicial retirements, thereby creating even more vacancies for President Grant.
