The right-wing cabal now running the US Supreme Court went on a rampage this year, eviscerating abortion rights, shredding separation of church and state, weaking the ability of the EPA to regulate greenhouse gas emissions and of states to enact common-sense gun controls, and a lot more. There’s a way to fix this, but the people and organizations who could get it done are largely choosing not to—or dithering until it may be too late.
What’s disturbing about many of these SCOTUS decisions is not just the abhorrent results—which could threaten a great many rights beyond those immediately under assault, such as same-sex marriage—but the convoluted reasoning the far-right justices used to get there. For example, in the Dobbs decision overturning Roe v. Wade, Justice Samuel Alito’s ruling invented a fictional history in which abortion had always been illegal in the US until 1973, simply ignoring the ample evidence to the contrary provided in an amicus brief by the American Historical Association.
Adding insult to injury, legal authorities cited by Alito included 17th century English jurist Sir Matthew Hale, who presided over the execution of so-called “witches” and wrote that “the husband cannot be guilty of a rape committed by himself upon his lawful wife.”
In Kennedy v. Bremerton School District, one of several rulings attacking church-state separation, the 6-3 ruling written by Justice Neil Gorsuch adopted as fact a made-up version of the events that provoked the dispute: “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance.” That’s not what happened. As clearly established in lower court hearings on the case, coach Joseph Kennedy in fact led student athletes in sectarian prayer at the 50 yard line of the school’s football field during games, a coercive act that was neither quiet nor personal. During the Supreme Court hearing, Alito—him again!— actively resisted efforts by attorneys to correct the record on this and other factual points.
Ponder this: This court based two massively important rulings affecting fundamental rights on clear and incontrovertible lies.
These and other SCOTUS decisions have outraged pretty much everyone to the left of Joe Manchin, whether they call themselves liberals, progressives, democratic socialists or whatever. And these decisions aren’t random.
The far right’s takeover of the court is the outcome of a long campaign funded by right-wing donors and largely coordinated by the Federalist Society. To finish the job, then-Senate Majority Leader Mitch McConnell refused to allow a hearing on President Obama’s nomination of Merrick Garland as justice, allegedly because it was too close to a presidential election, then tossed aside his purported principles and jammed through Trump nominee Amy Coney Barrett even closer to an election. Oh, and GOP senators ignored credible allegations that another Trump appointee, Brett Kavanaugh, was a rapist in order to confirm him.
With justices having lifetime tenure, we could well be stuck for decades with this cabal intent on taking us back to the 19th century—unless we act. The only viable answer, as Take Back the Court has explained, is to expand the Supreme Court, bringing it back into balance by adding justices. After that, term limits for justices could help forestall a long-term takeover by any one faction.
Expanding the court wouldn’t take a constitutional amendment. The size of the Supreme Court is set in statute, not in the constitution, and has been changed several times throughout our history. Democrats could change it tomorrow if they had the will.
They don’t, and neither do a lot of the organizations that might be able to push them to do so.
The list of endorsers compiled by Take Back the Court tells an interesting and disturbing story. It includes several senators, including Elizabeth Warren and Ed Markey of Massachusetts, but neither of California’s senators. It includes over 60 members of Congress, including Barbara Lee of Oakland and Adam Schiff and Karen Bass of Los Angeles. But strikingly absent are the Democratic congressional leaders who could get it done, including Speaker of the House Nancy Pelosi and Senate Majority Leader Chuck Schumer, plus lots of other Democrats who’ve sharply criticized the court.
Case in point: Sen. Sheldon Whitehouse of Rhode Island, a vocal SCOTUS critic. In a Sept. 18 interview, MSNBC’s Mehdi Hassan pressed him on court expansion. Whitehouse had no substantive objection, but explicitly declined to endorse the idea, arguing that “we have not yet, I don’t think, fully made the case to the American public” for adding justices. He went on to cite Congress’s failure to enact Green New Deal proposals, while some Republicans have used the concept as a punching bag, as what happens when supporters of an idea do what he called a “botched” rollout and fail to adequately make their case.
But that’s not what happened. The problem with the Green New Deal wasn’t that supporters like the Sunrise Movement and Rep. Alexandria Ocasio-Cortez failed to articulate what it is or why it’s needed. The problem was that Democratic leadership, whom the Beltway media rely on to define “serious” progressive proposals, refused to embrace it—with Nancy Pelosi famously dismissing it as “the green dream or whatever they call it”—hanging its supporters out to dry.
Here we go again.
In any case, a Marquette University poll released just three days after Whitehead’s MSNBC interview showed he was wrong about advocates not having made the case, with only 40 percent approving of how SCOTUS does its job and a majority favoring court expansion. Despite this, Whitehead has not changed his position as of this writing.
Progressive advocacy groups aren’t doing much better. While Take Back the Court’s endorsement list is impressive, ranging from Black Lives Matter to Indivisible, March for Our Lives, Lambda Legal, the National Center for Lesbian Rights and 350.org, among others, one can’t help but notice how many of the biggest players in civil rights, abortion rights, LGBTQ equality, climate and other movements aren’t listed. What’s up with that?
A Take Back the Court spokesperson told me they believed the list was up to date, but omissions were certainly possible. So as a spot-check I reached out to sampling of leading national groups that have strongly criticized recent rulings but aren’t listed as endorsers by Take Back the Court: Planned Parenthood, the NAACP, Human Rights Campaign, National LGBTQ Task Force, Natural Resources Defense Council, Sierra Club, Americans United for Separation of Church and State and the Freedom from Religion Foundation. (Full disclosure: In a prior job I worked a bit with NRDC and I’ve been a longtime donor to Americans United). My initial email posed these three questions:
- Has your organization taken a position on SCOTUS expansion or other substantive reforms, such as term limits for justices?
- If you have not, is the issue under active consideration?
- If you have chosen not to support SCOTUS expansion, could you briefly indicate your reasoning for this position?
The Freedom from Religion Foundation promptly responded that it had in fact endorsed legislation to increase the number of justices (Take Back the Court has since updated its list). NRDC indicated that it had not taken a position and so would not comment further.
The only other substantive response came from Americans United for Separation of Church and State. Andrew L. Seidel, vice president of strategic communications, wrote, “We’re not ready to comment publicly yet, but are closely examining this issue. While we don’t have a comment right now, we will in the future. I’m happy to let you know then.”
From the rest… crickets, despite repeated follow-ups. And there’s no indication on any of their websites that they have a position on the Supreme Court besides yelling about bad decisions. The Sierra Club called West Virginia v. EPA, which limited the EPA’s ability to regulate greenhouse gas emissions, “deeply disappointing and dangerous.” The NAACP called Dobbs “an egregious assault on human rights.” Planned Parenthood called the draft Dobbs opinion leaked in May “horrifying and unprecedented.” In response to Dobbs, HRC wrote, “Overturning Roe took a coordinated, well-funded, five-decade effort by anti-abortion politicians and extremist groups, with the goal to strip people of the freedom to control their own bodies, futures and lives.”
Great. Fine. Agreed on all counts. But now what? What’s your plan? Sitting around and hoping things will change is magical thinking, and magical thinking won’t save us from Alito, Barrett, and company.
If the advocacy groups and Democratic politicians sitting on the sidelines have an objection to SCOTUS expansion, say so and let’s debate. The only meaningful counter-argument I’ve heard is that if Dems add justices now, Republicans will do the same when they get in power, setting off a cycle of partisan shifts. That’s not crazy, but it’s also like telling Ukraine not to fight back against the Russians because if they do the Russians will just attack harder.
The worst-case outcome of court expansion is a continuing, see-saw battle with ups and downs, but at least a brief respite from the current horror. The almost certain outcome of allowing the status quo to continue is the erasure of a century of progress toward a decent, fair society. Still, if those sitting out this fight have a better plan, please share it.
Or better yet, get off your ass and start saving what’s left of this country.