Opinion: Expanding the U.S. Supreme Court: An idea whose time has come

Members of the Supreme Court sit for a new group portrait following the addition of Associate Justice Ketanji Brown Jackson at the Supreme Court building in Washington in October 2022.

Members of the Supreme Court sit for a new group portrait following the addition of Associate Justice Ketanji Brown Jackson at the Supreme Court building in Washington in October 2022. J. Scott Applewhite / AP file


Published: 05-13-2024 6:00 AM

Jonathan P. Baird lives in Wilmot.

Where the U.S. Supreme Court is concerned, the shocks keep coming. While you cannot always tell what a court will decide based on oral argument, it was bracing to watch a former president who tried to overthrow his last election have his attorneys argue for absolute power and lifetime immunity from any criminal prosecution. This was a case the Court didn’t have to hear.

We also had the spectacle of Justice Clarence Thomas sitting on a case in which he was utterly conflicted and should have recused. The silence around Thomas, especially from Chief Justice Roberts, was deafening. Because Thomas’s wife, Ginni, was a January 6 insurrectionist, he had no business being part of the case. Thomas embodies the ethical sleaze of billionaires buying a self-serving brand of justice.

However the Supreme Court ultimately rules on the Jan. 6 case, there is no denying the huge favor they delivered to the Republican candidate for president. Delay is Trump’s agenda and he could not have asked for more from the Republican-appointed justices. Pushing the Jan. 6 trial back until after the November election is all Trump wants. If he wins in November, Trump will dismiss Jack Smith’s Jan. 6 case and all federal cases in which he is a defendant.

As should be clear, the Supreme Court majority wants a Republican president. Whatever they personally feel about Trump and how distasteful he is, they are bought into a Republican winning. They need that to pursue the Federalist Society vision they share.

This term they have done everything they can to make sure Trump can run again, first in Trump v Anderson, the Colorado case about interpretation of the Fourteenth Amendment (which allowed Trump to remain on the ballot) and now in delaying the Jack Smith prosecution.

I would contrast the Court’s kid gloves treatment of the overwhelmingly white MAGA Jan. 6 defendants in the Fischer v United States case with the treatment meted out to DeRay McKesson, a Black Lives Matter leader, who helped to organize a Baton Rouge protest after the fatal police shooting of Alton Sterling. In the protest, someone who remains unknown threw a rock that hit a police officer in the face causing serious injury.

McKesson had nothing to do with throwing the rock but the Supreme Court declined to hear his appeal. The Court below, the Fifth Circuit, ruled that a protest leader (McKesson) can be held liable for the violent action of a protest participant. Negligence is apparently in the eye of the beholder.

Leaving in place McKesson’s liability provided a crushing blow to the First Amendment rights of Black civil rights protesters in Louisiana, Texas and Mississippi. In contrast, in any of the Jan. 6 cases, it is like the Court majority is looking beyond the actual insurrection as if it did not happen. As Justice Gorsuch put it at the Jan. 6 oral argument, they are writing a rule “for the ages,” not deciding the facts of a case.

The Jan. 6 case follows in the wake of so many body blows the Court has inflicted on democracy. Citizens United destroyed campaign finance reform; Dobbs eviscerated women’s rights; Shelby County subverted voting rights; Heller and Bruen did in gun control.

And that barely begins to describe how the Republican majority justices have taken it upon themselves to remake America as they see fit. I also think of separation of church and state, partisan gerrymandering, ending affirmative action and obliterating environmental regulation.

Consistent with the Federalist Society desires, the Supreme Court has become an out-of-control super-legislature that operates without restraint. They are the kids in the judicial candy store. They can block any progressive change that emerges from the Executive Branch or Congress. Witness their intrusion into and tubing of Biden’s student debt relief plan. They now operate as an institutional counter-majoritarian break on any change that deviates from current conservative orthodoxy.

The fact that they are wildly unpopular doesn’t appear to faze them or slow them down. A 2023 poll showed only 18% of Americans had a great deal of confidence in the Supreme Court. To call the Court out-of-touch is generous.

Some Democrats have finally begun to realize that a continuation of the Supreme Court’s trajectory is a death knell for any kind of vibrant democracy. It is worse than is generally recognized. A study from last year concluded that unless Democrats expand the Supreme Court, they will not have a majority on it until 2065! Imagine 40 more years of this Court doing more of what it is doing.

It is hard not to think they would rubber-stamp fascism. Fascist leaders typically don’t disband Supreme Courts. They simply get them to do their bidding. Forty more years of MAGA justice would be Jim Crow 2.0. It would not allow Congress or the president to act on climate change in the face of a climate emergency nor would it allow progress on gun control or immigration reform. The Court would likely be comfortable with indefinite one-party rule.

Democrats need to move up expanding the Supreme Court on their list of priorities. Right now it is down the laundry list of demands. There is no constitutional prohibition against adding justices to the Court and it has been done many times before. After Mitch McConnell’s games keeping Merrick Garland off the Court and then the Coney Barrett eleventh-hour jam, Republicans have no right to complain. They stole the Court and expansion is the only way to restore a semblance of fairness and democracy.

Last May Sen. Ed Markey (D.-Mass), Tina Smith (D.-Minn) and Rep. Hank Johnson (D.-Ga) introduced the Judiciary Act of 2023 that would expand the high court by adding four seats to create a 13-justice bench. The bill is unlikely to pass any time soon but Democrats did take a step forward in introducing the bill.

What is going on now is a democracy emergency. Fascism is waiting in the wings. The rule of law matters and expanding the Supreme Court is the single reform with the most potential to revitalize democracy and stymie voter suppression, partisan gerrymandering and billionaires buying elections. While it is true the Republicans would further pack the Court if they gained the presidency, there is no other reform that could disempower the MAGA justices.

Failing to respond to a system rigged in favor of the Court’s billionaire donors is not an option. Expanding the Court is doable and it is the most effective judicial reform to cure what is ailing us.