House Speaker Mike Johnson had a great idea to win votes for Republicans this fall — you know, in addition to squawking about “communists” every few minutes like a macaw that fell through a wormhole to 1953. Johnson on Wednesday brought to the House floor a constitutional amendment to permanently cap the number of Supreme Court justices at nine.
Johnson told reporters Tuesday that the amendment was needed to stop, yes, the “communist socialists in the Democrat Party who are taking the party over” before they can “pack the US Supreme Court.” Johnson may have thought he had a terrific midterm strategy to force House Dems to say whether they support reforming the Supreme Court. Get ‘em on the record and all that.
The rewrite to the Constitution was never likely to pass, since constitutional amendments must pass by a two-thirds majority in both houses of Congress before going to the states for ratification. And lo, it was so: The vote fell far short, with all but one Democrat in the House voting against it. (That would be Rep. Don Davis of North Carolina, of whom we’ve seldom heard except on the occasional list of House Democrats who support stupid shit they oughtn’t.)
Now that they’ve voted down the amendment, Democrats should also thank Johnson for reminding midterm voters that Congress has the power to change the number of justices on the Court simply by passing a law, as Congress has done seven times already. We’d bet that a substantial segment of voters sick of the Court’s shenanigans — dismantling abortion rights and the Voting Rights Act, and giving Trump legal immunity for any crimes he wants to commit, among many others — might react to the idea of bringing some kind of balance to the Court not by saying “oh noes, court-packing!” but by asking, “Wait, we can do that?” Hell yes we can, because the Constitution leaves the composition of the Court up to Congress.
Americans haven’t been this unhappy with the Supreme Court in ages: A July 30 Pew Poll found just over than half of respondents (53 percent) said they have an unfavorable opinion of the Court, with “favorable” views of the Court (45 percent) near the lowest level they’ve been in the 30 years Pew has even asked the question. A July 28 Gallup poll put “confidence” in the Supreme Court at an all-time low, just 33 percent.
So thanks, Mikey. We should make DO SOMETHING to stop the awful rightward direction of the Supreme Court an issue in the campaign. Doesn’t have to be limited to increasing the number of justices, either, but could also include some other bright ideas to not only drag the Court out of Harlan Crow’s rumpus room, but also to keep it from being ideologically captured by extremism in the future.
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Johnson’s attempt to scare people about commies coming to pack the Supreme Court comes in response to a wave of recent calls from a range of prominent Democrats to force a course correction on the Court, largely after April’s disastrous “Racial Gerrymandering is fine as long as you don’t put your reason in writing” decision in Louisiana v. Callais, which completed John Roberts’s dream of finally gutting the Voting Rights Act. Republican-controlled state legislatures got to work eliminating majority-Black congressional districts across the South, and somewhere in Hell Strom Thurmond high-fived Roger Taney.
The most recent post-Callais call for Supreme Court reform came from Rep. James Clymer (D-South Carolina), who nearly had his own seat gerrymandered away until Republicans in the South Carolina Lege realized drawing new district lines could lose them more seats than the one they might win. On Meet the Press last Sunday, Clyburn told host Kristen Welker, “we are in a position now that calls for some significant actions taken by the Congress and we ought to expand, and 13 is a pretty good number. A baker’s dozen, it would be a good number to have on the Court.” In that interview, Clymer also said the Roberts Court had “decided to reverse course and take this country back to those rulings of Justice Taney, that said, ‘No Black man has any right that white man must respect,’” a paraphrase of the infamous Dred Scott decision.
Several Democrats have called for expanding the Court to 13 members, to match the number of federal district courts, and also because they can count, too. Another four seats appointed by a future Democratic president would shift the Supreme Court majority to 7-6, negating the three (3!) justices Trump added after Mitch McConnell refused to hold confirmation hearings for Obama nominee Merrick Garland back in the Before Times.
The problem with expanding the Court, of course, is that the next time Republicans win a governing trifecta after people forget who Republicans are, they too could add justices, in yet another national seesaw like how for four years science is real, then for four years we set all the scientists on fire.
One alternative to simply expanding the Court, which could still be accomplished by Congress without amending the Constitution, would be to place term limits on Supreme Court justices. The founding document doesn’t specify lifetime terms for justices, though that’s been the effect of its language that justices “shall hold their Offices during good Behaviour,” meaning the only way to fire one is impeachment. But as the Brennan Center explains, you could keep ancient justices around by having them assume “senior status” after 18 years. They’d still serve, but instead of fucking us over forever, they “would hear cases by designation on the lower courts, step in to hear cases on the Court during a recusal or unexpected vacancy, and assist with the management of federal courts.”
Combine 18-year terms with a system where every president can appoint two justices, one in their first year of office and one in their third, and you’d have both a supply of fresh justices, better representation on the Court of voter intent, and means of discouraging justices from timing their retirements to let a president of their own party name a successor. Rep. Ro Khanna (D-California) has introduced a similar term-limits bill, which of course doesn’t have a chance in the House now, but could easily serve as a reform template when the electoral climate is better. As the Brennan Center reminds us, a good bill that gets shot down by one president can set the agenda in a later Congress and presidency, which is how we got both the National Voter Registration Act (the “motor voter” law) and the Family and Medical Leave Act. George HW Bush vetoed both, but Bill Clinton signed them into law shortly after being elected.
Fun trivia fact: Khanna’s bill doesn’t specify an exact number of justices, but would just start adding new ones every two years after it goes into effect; eventually, the term limits would get us to nine working justices as the longest-serving ones would graduate to senior status when new justices come on. Institutional stability without a built-in partisan tilt.
Other Supreme Court reforms could also be passed without a constitutional amendment too, like a binding code of judicial conduct that would rein in corruption, and legislation restricting the use of the Supreme Court’s “emergency” powers. The Roberts Court has employed the “shadow docket” to wink and nod at Trump’s power grabs by allowing him to act while cases work through the lower courts, a species of fuckery that lets his allies on the Court avoid ruling on the merits of cases until long after the damage is done. (See the smoking remains of the East Wing of the White House and of USAID for examples.) Congress could require justices to limit emergency rulings to real emergencies, like stepping in to stop an execution, and could also require brief, signed opinions when the Court does rule in an emergency case.
While we’re at it, how about No More McConnells, with a Senate rule requiring hearings and a vote on SCOTUS nominees within a set time of the president naming them? If the Judiciary Committee delays hearings, then there should be an option for senators to force the nomination out of committee for debate and a vote.
As things stand, the Trumpbuddies on the Supreme Court keep giving Americans more and more reasons to see them as nothing more than partisan hacks. Democrats need to step up and save the Supreme Court from its own really fucked up behavior.
[NBC News / Brennan Center / MS NOW / New Republic / National Constitution Center / Alabama Reflector]
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I love the far better headline Rebecca gave this, but it also meant losing my original subhead: "Just give each justice a luxury RV the day they’re sworn in and call it good."
But I can still use that'n on Bluesky.
Now do the electoral college.