The Supreme Court: Think Big or Go Without Democracy

By Bill Simpich, Reader Supported News

15 October 20

my Coney Barrett, Brett Kavanaugh, and their pals are not the main problem with the Supreme Court.

The structure and power of the Supreme Court itself — that’s the problem.

It has been a problem throughout the time of the American experiment. You don’t think the courts are political? Go down to the local courthouse, find a seat, and watch the fray for a morning or two. Some ambitious political judges getting into the mix is inevitable. The only thing worse than voting for them is appointing them. The best you can hope for is to prevent the judges from becoming tyrannical. Trust the people — not the judges.

The Republicans have overplayed their hand with Barrett and Kavanaugh — this is an opportunity for a very positive set of reforms, with one big proviso: You can’t fix this court by adding two or four Democrats to the court. You could add twenty or forty Democrats — it would still be innately conservative. It’s the nature of the beast.

The only way to fix the Supreme Court — or any other court — is to subject it to a wide variety of judges who have a wide variety of human experience.

The Supreme Court is conservative no matter which party is in power. Since the eighteenth century, this court has kept down people of color. The treaties with Native Americans have not been honored. The Dred Scott decision kicked off the Civil War. The 1989 decision in Graham v. Connor ensured that it would be virtually impossible to obtain guilty verdicts for excessive force against police officers in the United States.

Economically, the Supreme Court has consistently backed the titans of industry, pushing back the power of the people at every turn. The latest outrage, Citizens United v. FEC, gives corporations the “First Amendment right” to donate unlimited amounts of money to political campaigns — and it’s destroying democracy as we know it. Amending the US Constitution to amend Citizens United is proving to be the work of a generation.

We live in an era where the Supreme Court has way too much power. Here’s how the people can push back.

One important tool is term limits. Federal judges are appointed for life — but there is no rule mandating that a judge appointed to the Supreme Court gets to stay there for life. There are also district court judges (for ordinary cases) and circuit court judges (for the courts of appeal).

Every one of the Supreme Court justices needs to be kicked downstairs and get to see how the other half lives. That can be done with a law passed by Congress.

This battle has already begun — and I predict term limits will pass if the Democrats gain the Presidency and the Senate.

Democrat Ro Khanna recently introduced a bill on the House floor modeled on the proposal of the nonpartisan group Fix the Court. The bill would mandate an eighteen-year term for all justices and then provide for these justices to take “senior status” within the pool of the other federal judges. Each president would get to pick two justices in a four-year term for the next 18 years — it would protect the current eight justices, but appoint new justices without waiting for them to retire.

I think a shorter term like ten years would be even better — and I would not give any of the current justices a grandfather clause. Such a plan is far preferable than a simple tit-for-tat court-packing scheme.

An even more powerful tool is super-majorities. I don’t agree with the notion of court-stripping, because a law saying that judges cannot overrule a bad law is the equivalent of giving a dictator the keys to the highway.

But important statutes like the Affordable Care Act should not be the subject of 5-4 decisions. Such a decision should require a 2/3 majority, or even a 3/4 majority.

The Constitution relies on the President checking Congress with the veto, and with supermajorities in Congress checking the power of the President. There are many good reasons to support Congress passing a particular law with the proviso that it will take a super-majority to override the law on Constitutional grounds — it almost happened during FDR's court-packing battle in 1937.

The goal is to stop both the Republicans and the Democrats from using the Constitution as a political football. Hard decisions — like 5-4 decisions — make bad law. Courts are best at making nuanced decisions, not playing politics.

The most interesting tool would be to re-imagine the court with a “Balanced Bench.” Reconstitute the Supreme Court with ten justices, five chosen by the Democrats and five by the Republicans. Then they have to choose five by a strong supermajority, or no Supreme Court decisions for that year. I don’t think most people are ready for this yet, but think about it.

Law professors Daniel Epps and Ganesh Sitaraman came up with the Balanced Bench — and they suggest an alternative with the “Supreme Court Lottery.” In this scenario, every federal appellate judge becomes an associate justice of the Supreme Court. Then they hear cases in panels of nine justices chosen at random. This would also take the court further away from the political and electoral realm.

The Supreme Court will never be an avenue of social change. With effective push-back, we can prevent it from taking over. This could be done in the next two years, if the Democrats win in November and get serious.

Bill Simpich is an Oakland attorney who knows that it doesn’t have to be like this. He was part of the legal team chosen by Public Justice as Trial Lawyer of the Year in 2003 for winning a jury verdict of 4.4 million in Judi Bari’s lawsuit against the FBI and the Oakland police.

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