The U.S. Supreme Court Needs to Be Expanded

First as a law student and then as a younger attorney working frequently on appellate briefs I havve read more U.S. Supremem Court opinions than I can count and followed the make up of the court for decades and have even meet two Chief Justices.  At times in its history the Curt has rendered disastrous opinions - upholding the myth of "separate but equal" and supporting segregation being one glaring example.  Now, with a "consevative" majority - right wing extremists may better describe several justices - and justices packed on the Court by Republican abuses, the Court appears hell-bent on sliding back to forcing ideologically driven decisions on the majority of Americans and both destroying rights supposedly settled for many decades - e.g., voting rights, separation of church and state, and abortion being a few - and destroying the Court's legitimacy in the eyes of a majority of the citizenry.  Frighteningly,  the far right ideologues on the Court simply do not care and only seek to impose their political views on the nation.  As an op-ed in the Washington Post lays out, it is time to expand the membership of the Court before it pushes American to either an autocracy or an oligarchy.  Things are truly that serious.  Here are column excerpts:

We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly.

One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.

They operate to entrench the power of one political party: constricting the vote, denying fair access to the ballot to people of color and other minorities, and allowing legislative district lines to be drawn that exacerbate demographic differences. As a result, the usual ebb and flow that once tended to occur with succeeding elections is stalling. A Supreme Court that has been effectively packed by one party will remain packed into the indefinite future, with serious consequences to our democracy. This is a uniquely perilous moment that demands a unique response.

None of the reforms that have been proposed precisely fit the problem that needs remedying. Term limits cannot be implemented in time to change the court’s self-reinforcing trajectory.

And while much can be said in favor of the narrower repairs the commission addressed — such as increasing the transparency of the court’s proceedings, reducing its discretion over its docket or imposing constraints on its use of emergency procedures (“the shadow docket”) — none is adequate.

Offsetting the way the court has been “packed” in an antidemocratic direction with added appointments leaning the other way is the most significant clearly constitutional step that could be taken quickly. Of course, there is no guarantee that new justices would change the destructive direction of judicial doctrine we have identified; respect for judicial independence makes that impossible. Of course, successive presidents might expand the court further, absent an unattainable constitutional amendment fixing its size at a number such as 13. But the costs are worth the benefits.

Though fellow commissioners and others have voiced concern about the impact that a report implicitly criticizing the Supreme Court might have on judicial independence and thus judicial legitimacy, we do not share that concern. Far worse are the dangers that flow from ignoring the court’s real problems — of pretending conditions have not changed; of insisting improper efforts to manipulate the court’s membership have not taken place; of looking the other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.

Put simply: Judicial independence is necessary for judicial legitimacy but not sufficient. And judicial independence does not mean judicial impunity, the illusion of neutrality in the face of oppression, or a surface appearance of fairness that barely conceals the ugly reality of partisan manipulation.

Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.