Kavanaugh And Gorsuch Confirmations Force Progressives To Rethink The Supreme Court

The recent confirmation of Brett Kavanaugh to the Supreme Court and Republicans' 2016 stonewalling of Merrick Garland have upended liberals' view of the Supreme Court as a protector of key constitutional rights. Now, progressives are starting to talk about how to challenge the power of the sitting Supreme Court.

The issues under discussion range from process reforms like ending lifetime appointments and enacting recusal and ethics laws to stripping the court of jurisdiction and retaking "stolen" seats. Many of the ideas have been debated by legal scholars in decades past, but the rise in interest among progressive political partisans is decisively new. And even though opinions on the path forward diverge, and lawmakers have yet to jump on the bandwagon, the discussions are evidence of a new adversarial posture toward the court for progressives and the Democratic Party.

The disempowerment that progressives are feeling is one familiar to conservatives who have long viewed the court with a mix of suspicion and outright hostility.

"Progressives have felt that they were well taken care of in the judiciary and that we had secured a lot of important rights with this past litigation mid-century and that was going to be the way we would defend our gain," Todd Tucker, a legal scholar at the progressive Roosevelt Institute, said.

The same 20th-century rulings led by chief justice Earl Warren's court and and the early years of chief justice Warren Burger's term in office that progressives have long sought to defend ― the end of segregation, the ban on compulsory school prayer and the legalization of abortion ― galvanized conservative Christians into a political bloc within the Republican Party. They were joined by business conservatives looking to roll back rules and regulations established from the New Deal through the consumer safety and environmental protections of the 1970s.

The fervent opposition to these court rulings led to a better understanding among grassroots conservatives of the court as a political entity that could be changed over time. It also birthed a decadeslong campaign to remake the court as the conservative bulwark it had been for most of its history.

In the past two months, progressives have started a similar debate on how to reform the court in opinion pieces, legal white papers, roundtables and partisan activism efforts.

Reforms On The Table

Legal scholars have been debating the idea of 18-year term limits for justices since at least 1986. This reform would allow each president to appoint two new justices per four-year term. Justices who are term-limited off of the Supreme Court would not leave the judiciary but would rotate out to ride the circuit courts. Some argue it is a way to lower the political temperature of confirmation hearings and is constitutionally plausible (although definitely not bulletproof). Vanderbilt University law professor Ganesh Sitaraman, however, said at a recent event hosted by the American Constitution Society that it actually raises the political stakes by making every single presidential election a referendum on the Supreme Court.

The imposition of term limits and other issues related to the personnel of the court misses the real problem at hand, Aziz Huq, a law professor at the University of Chicago, argued at the "Reforming The Court" panel. "We are having this conversation because the court is powerful," Huq said at the New America Foundation, which was hosting the event. For that reason, he said, progressives, "need to limit the power of the court."

Huq's answer is for Congress to strip the court of jurisdiction over specific issues by limiting what cases the court can hear through the Exceptions Clause. That may sound crazy ― and some scholars think it is ― but it's in no way unheard of in American politics. Congress has routinely increased the breadth of the Supreme Court's jurisdiction, so why can't it limit it?

Limiting the Supreme Court's ability to hear cases was long a cause of populists and progressives in the late 19th century and early 20th century. The court's pro-business rulings from the Gilded Age through the Lochner-era Court in the early 20th century prompted protest from progressive lawmakers. After the court struck down a law to ban child labor ― one of many such laws regulating corporate behavior struck down at the time ― progressives introduced legislation to allow Congress to override Supreme Court decisions, require a supermajority vote on the court to nullify enacted laws and strip the court of jurisdiction over laws banning child labor.

Conservatives took up the mantle of attacking the court's power in the 1970s and 1980s by introducing bills to strip the court of the ability to hear appellate cases related to school prayer, school busing, abortion, the male-only military draft, police arrests and cases arising from state court decisions.

None of these bills ever passed. Instead, during the stretch of time from the Gilded Age all the way to the late-1980s Congress has increased the power of the Supreme Court by expanding its jurisdiction and discretion to hear cases.

Adding new justices to the Supreme Court is another idea increasingly popular among those progressives angered over the Kavanaugh and Garland decisions. The Constitution does not set the number of justices in stone and the number of justices has fluctuated over the years, bumping up to 10 during the Civil War. It has been set at nine since 1869.

US Supreme Court nominee Merrick Garland looks at President Barack Obama after he announced his nomination in the Rose Garden at the White House in Washington, D.C., on March 16, 2016.

The issue is obviously controversial as it would allow one political party to change the personnel of the court to get the partisan outcome they desire. If one party does it, then what's to stop the other party from doing the same the next time they have a chance, Sitaraman argues.

But at least one progressive push to pack the court has already begun. 1.20.21 is a public education campaign run by political scientist Aaron Belkin and backed by noted liberal Harvard Law School professors Laurence Tribe and Mark Tushnet to get progressives behind the idea of packing the court in 2021 if they have won the necessary political power to do so.

Belkin, who helped organize the opposition to the Pentagon's Don't Ask, Don't Tell policy, wants to reverse the "judicial theft" of the seat Garland was denied by having the next Democratic president appoint two new justices. The Kavanaugh seat should also be offset by two newly appointed justices in response to disastrous nomination process and failure to fully investigate the allegations of sexual assault against the judge, he says. That would bring the Supreme Court up to a total of 13 justices.

"The point of the project is to unsteal the courts," Belkin said.

This argument is pretty simple and straightforward and ignores many problems that legal scholars tend to fuss over. Will it raise the political stakes? Will it bring stability to our democratic institutions? Who cares, Belkin says.

"To say that Democrats shouldn't unsteal the courts because we're worried about the normative context, I think, is to ignore the very normative context that we're already in," he said.

The norms are already gone. What matters to Belkin, and one imagines a lot of Democrats, is justice.

The plan for this campaign is, in many ways, like the ongoing conservative effort to establish and maintain control of the Supreme Court. It's a public education campaign to inform progressives about the past and present conservative history of the court and keep the memory of the stolen Garland seat fresh. Grassroots progressives would then pressure their elected officials to back a plan to pack the court.

Do Lawmakers Care?

These ideas and the debate around them may be percolating among progressives think tanks and online activists, but they haven't broken through yet with the most important crowd: elected lawmakers. So far, Democrats in Congress have shown little enthusiasm for these ideas, or for really any ideas about changing the Supreme Court at the moment. Rep. Jerry Nadler (D-N.Y.), the incoming chairman of the House Judiciary Committee, said he wasn't interested in impeaching Kavanaugh for his alleged lying during his confirmation hearings. And only one sitting member has openly backed adding new justices.

Rep. Ro Khanna (D-Calif.) says he supports adding justices to court not as justice for a stolen seat, but as part of a broader effort to stabilize the court and enable it to hear more cases. Khanna supports the addition of new justices requiring a supermajority vote of either 60 or 67 senators and the end of lifetime appointments.

"The idea that you're appointed by a president and then could be influencing the nation 40 to 50 years down the line is highly counter-majoritarian," Khanna said. "You're binding future generations with little accountability to a democratic will."

What Might Spur Action

The current Court led by chief justice John Roberts has been known for rulings rolling back progressive legislation, including the 2010 Citizens United ruling that legalized unlimited corporate spending on independent political efforts. That decision has animated progressives across the country along with the 2013 Shelby County decision overturning part of the Voting Rights Act, which similarly drew broad condemnation. But the post-Anthony Kennedy court has yet to issue a ruling, much less one that defines its perfidy to progressives. That time will come, though.

Caroline Fredrickson, the ACS president, is most concerned about rulings that deal with democracy like the Shelby County and Citizens United decisions. Future rulings further limiting the Voting Rights Act, preventing states from limiting gerrymandering or gutting campaign finance laws could be easily seen as partisan attempts to help the party that appointed the five conservative justices and, thus, destroy trust in the judiciary.

For Tucker, the scholar at the Roosevelt Institute, the big worry comes from this conservative court striking down progressive legislation meant to deal with climate change.

"Once you start to look at the aggressive Green New Deal policies that climate scientists say are necessary to head off these irreversible impacts over these next 10 or 20 years, that is where you're going to see the rubber hit the road," Tucker said. "Some of that is going to inevitably interfere with property rights, and you have to have a court that's willing to accommodate that."

And if the court doesn't agree, progressives will at least have started this policy discussion years earlier to help guide them towards a forward.

A Switch in Time?

As progressives are discussing their path to taming the court, the debate over these proposals may be serving its own purpose, according to Amanda Frost, a law professor at American University.

"I'm not a fan of packing the court or term limits, but I'm not afraid of talking about it," Frost said.

Talking about it puts political pressure on the court. That is the real lesson of President Franklin Roosevelt's failed attempt to pack the court in 1937, Frost argues.

Roosevelt's court-packing scheme is remembered as an extreme overreach of power, but the pressure it brought to bear on the court may have forced at least one justice to abandon the pro-business Lochner-era jurisprudence to uphold the minimum wage. Justice Owen Roberts' flip to the liberals on the issue of the minimum wage ― "the switch in time that saved nine" ― is remembered as the birth of the New Deal Court which also put a nail in the coffin of Roosevelt's court-packing plan. Roberts' flip made the packing plan redundant.

There's another Roberts sitting as the swing justice today. Maybe the current chief justice will listen to public pressure when it comes calling 10 or 20 years down the line. Part of the present problem, however, is that progressives already know that he won't.