Just a few days after Ruth Bader Ginsburg’s passing, Donald Trump and Senate Republicans are moving quickly to appoint and confirm a replacement. A growing number of moderates, such as Eric Holder, are warning that should Republicans ram through an appointment, this fact, plus the deliberate blockade of Barack Obama’s appointment of Merrick Garland in 2016, would justify a new Democratic administration and Congress to add seats to the supreme court to restore balance.
With voting already under way in the 2020 election, a rushed appointment and confirmation in this moment would be a clear partisan power play, and further collapse the legitimacy of the supreme court. But more broadly, the firestorm over Justice Ginsburg’s replacement is a reminder of how the modern supreme court has too much power in the first place. It is critical that our democracy reform agenda also consider how to reform the judiciary.
First, courts have too much power to radically remake our social and economic life. If this latest Trump appointment goes through, the resulting 6-3 far-right majority on the supreme court would have the power and opportunity next month to invalidate the Affordable Care Act (in the middle of a deadly pandemic). They would be positioned to further gut voting rights, reproductive rights and rollback anti-discrimination protections for LGBTQ+ and Black and brown Americans, while further shielding police departments and immigration officials from accountability for racist state-sponsored violence against people of color. While courts have at times also ruled in more progressive directions to advance rights and equity, on balance this concentration of power without sufficient accountability is a threat to democracy – and to the ability of our communities to thrive.
Second, courts today are a threat to democracy because of how they have been weaponized to skew political power and insulate extreme conservative coalitions from democratic accountability. Over the last decade, conservative jurists and their aligned partisans in the states and the Congress have combined to radically shift the terms of political power in the country towards corporations and away from working class communities and Black and brown communities in particular.
They have dismantled organized labor through “right-to-work” laws and union-busting judicial rulings based on a corporate-friendly reading of the first amendment. They have dismantled the promise of free and fair elections by needlessly gutting the Voting Rights Act from the bench, opening the way for rampant and highly effective state-based policies that suppress the votes of Black and brown Americans. They have greenlit extreme gerrymandering by ruling that federal courts are powerless to stop politicians from rigging district lines, and opened the floodgates to dark money controlling our politics.
The strategy is clear: rig and skew elections to win legislative power in states and in the Senate despite the party’s minority level of popular support; use that leverage to pack the courts with partisans; and then use those packed courts to further skew the electoral process and to block rival legislation, as a way to hold on to power. These moves amount to an attempt to election-proof conservative control, reserving for the right the ultimate trump card that would block legislative and electoral shifts needed to rebalance democratic fairness and advance progressive policies.
Therefore, if we are to defend and rebuild our democracy, we need to advance structural reforms – including reforming the courts themselves. Congress is already considering the For the People Act, a landmark bill that would restore and expand voting rights, stop the flow of big money in politics, advance fair redistricting measures, and much more. These measures should be passed first and foremost in any new administration.
But we must also start considering the prospect of structural reform to the federal judiciary.
First, we need a judiciary that is much more reflective of our country. We need more Black and brown judges, more women judges, more judges who have had lived experiences of inequity, discrimination and struggle. Like Thurgood Marshall before her, Ginsburg was one of the few supreme court justices who came into the role following a career devoted to advocating and litigating for equity, justice and inclusion. Her experience on the frontlines of the battle for justice informed her jurisprudence and brought critical perspective and balance to the court. Imagine what a court filled with justices with direct lived experience of systemic racism, of gender and LGBTQ discrimination, of the struggle against homelessness and hunger and unstable healthcare coverage, would look like, and what such a court would do.
Second, we need to protect democratic politics from being upended by the idiosyncrasies of an individual justice, or the randomness of when a justice might step down or pass away. That means regularizing the replacement process by establishing fixed and staggered term limits for justices. We could also expand the size of the supreme court, and move to a model akin to circuit courts of appeals, where cases are heard by randomly drawn smaller panels, with an option to appeal to the larger full circuit.
Third, we need to consider similar changes in the state courts as well. We have already seen brazen attempts to pack and rig courts in Georgia and Arizona to lock in partisan advantage in the face of demographic shifts and renewed Black and brown organizing and mobilization that threatens long-standing GOP dominance in these states. In states where state supreme court judges are elected, we see a troubling flow of corporate campaign dollars to swing these elections – and then see how these courts undermine the democratically-sanctioned efforts of elected officials to pursue needed reforms.
A better judiciary
Our history is full of moments where courts have been weaponized to resist democracy – and where court reform has been needed to usher in a more equitable and inclusive democracy.
At previous moments where our country came close to securing a broadly inclusive, multiracial democracy, defenders of white supremacy and economic power have leveraged the courts to block the advance of democracy.
In the years after the civil war, violent paramilitary white nationalist attacks on Black communities combined with a supreme court that pro-actively intervened to immunize these attacks from criminal prosecution and struck down new civil rights laws passed under the 14th amendment to unravel Reconstruction and usher in the era of Jim Crow.
The civil rights movement of the mid-20th century advanced a “Second Reconstruction”, restoring the push for an inclusive equitable democracy by winning the desegregation mandate of Brown v Board of Education, and securing the Voting Rights Act and the Civil Rights Act. The modern conservative obsession with taking over the courts represents a backlash exactly echoing the response to Reconstruction: it was after Brown that conservatives mobilized calling for Justice Earl Warren’s impeachment, and we saw the beginnings of the long march to seize the judicial power for the right.
Democracy and equity, on the other hand, have periodically required a taming of ideologically-extreme courts. Lincoln and the anti-slavery coalition won the 1860 elections in part on the explicit push to overturn the infamous 1857 Dred Scott case that further codified the enslavement of Black Americans. Lincoln himself expanded the court to overcome its hostility to the civil war – and Republicans after the war removed the court’s jurisdiction to bypass its opposition to Reconstruction.
Franklin D Roosevelt famously threatened to expand the court in 1937 – and though he did not follow through on the threat, it was shortly afterwards that the supreme court abruptly reversed its pattern of striking down critical labor and economic regulations protecting workers and Americans in the height of the Great Depression.
This push came in the aftermath of nearly 30 years of progressive mobilization and campaigning against the “oligarchy” of the courts, which had become a primary barrier to needed labor and economic legislation protecting Americans from the inequities of the Industrial Revolution. It is not a coincidence that both of these efforts saw court reform as a critical component to advancing a more equitable and inclusive democracy, a precondition to preserve policies that aimed to dismantle deep systems of racial and economic subordination.
Today, we are fighting in this moment for the basic idea of a multiracial, inclusive democracy where Black and brown communities have the safety, security and freedom to the thrive. That battle requires structural change to dismantle our racialized systems of violence, economic inequality and unequal political voice. But it also will require building a better judiciary, one that enables, rather than frustrates, the process of democratic inclusion and responsiveness.