Dealing with the Stacked Judiciary
In this column, I follow up on my previous one and discuss what policy options Democrats have to deal with the stacked rightwing federal judiciary.
In the last column, I briefly recounted the ways in which the federal judiciary has been a political prize for every majority since the beginning of the nation, and I recounted how Republicans since Richard Nixon in 1968 have specifically targeted the US Supreme Court (and federal courts overall) in a political endeavor to prevent Democrats and liberals from ever having any political victory. This has been a pet project of the Republicans since the Supreme Court decision Brown v. Board of Education of Topeka to prevent the advance of liberalism – and to enshrine racial and sectarian division in their reading of the Constitution. With the Republican capture of the federal judiciary, we as a nation have entered a period that even though Democrats are the natural majority of the nation, the natural majority will not be able to govern even if they repeatedly win elections due to the insidious capture of the federal courts by the absolute minority of the nation. At this point, even if Democrats pass popular and much-needed legislation in order to remedy the nation’s ills, the stacked Republican courts can destroy everything and continue to prevent the popular majority from governing. This is unacceptable.
With all this in, there is a natural question: What can Democrats do about the stacked federal judiciary? The obvious answer to this is court packing, but there are actually numerous other options for Congress and/or the President to deal with the right-wing stacked federal judiciary. But first, let’s talk about why we are even in this bind. In the end of the last piece, I described the ideas of an “apolitical judiciary”, “judicial independence”, and “judicial supremacy”. To recap, an “apolitical judiciary” is a judiciary that is entirely independent and uninfluenced by politics. “Judicial independence” is the idea that the judiciary should not be influenced at all by any of the other branches of government no matter what. Lastly, “judicial supremacy” is the idea that in a constitutional system where the constitution is the “supreme law of the land”, it is judges who have the final say on the meaning of the constitution, which then allows for the doctrine of “judicial review” that allows judges to “strike down” laws passed by the legislature as being violative of the constitution.
In the context of the United States, the idea of an “apolitical judiciary” is nonexistent, and indeed, this doctrine is essentially unconstitutional. We do not have an “apolitical” or “politically independent” judiciary, and we never have. This comes straight from the fact that the constitution mandates that it is politicians who appoint (and confirm) judges. When the constitution itself mandates that politicians have a role in who becomes a judge, the idea that politics is taken out of judges and courts is rendered entirely farcical. It is impossible to expect a politician to not consider their own political (and partisan) interests when they are doing anything, and when considering who to appoint to judgeships, this idea is further incredulous.
Similarly, the idea of “judicial independence” is also not truly existent in this country because the judiciary relies on Congress and the President to have any powers other than the “judicial power”. About the federal judiciary, the Constitution says, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Note the use of the phrase “judicial power”. The operative word that describes the power held by the courts is “judicial”. This word is derived from the word “adjudicate”, which means “to settle or determine” – meaning “to decide”. As such, the Constitution only grants the judiciary the power of decision; that is all. In fact, in Federalist No. 78, Alexander Hamilton describes the power of the judiciary as simply the power to give a judgment:
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
What this then means is that in order for the courts’ judgments and orders to be carried out, the courts must rely on the other branches of the government, Congress and the President. In conflict, it is said that there are three fundamental ways to achieve victory: through the use of the purse, through the use of the sword, and through the use of the pen. Of these three, the use of the pen is fundamentally the weakest, and the pen is the only power that the judiciary has as an inherent and innate ability. Congress controls the power of the purse, and the President controls the power of the sword. For any power that the judiciary has beyond the power to just “adjudicate” or “decide”, it is derived from either Congress or the President. When the courts are fundamentally dependent on the other branches of government for basically everything of repute, the idea of “judicial independence” is a complete and total fallacy.
Lastly, “judicial supremacy” is also expounded upon by Federalist No. 78: “[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” Based on this, the US Supreme Court led by Chief Justice John Marshall in 1803 handed down the famous decision Marbury v. Madison which affirmatively created the doctrine of “judicial review”, which directly leads into “judicial supremacy”. In a constitutional government, it is axiomatic that all laws both are inferior to and must not be in contravention of the constitution. However, this still leaves a question of who decides the meaning of the constitution. In Marbury v. Madison, the US Supreme Court took this ability onto themselves. If judges are the ones who decide the meaning of the constitution and if no law that contravenes the constitution is valid or enforceable, we necessarily conclude that we have “judicial supremacy”. Whenever a constitutional system runs on “judicial supremacy” (as the American one does), the ability to decide who becomes a judge is extremely powerful and important.
In American culture, we believe that we have (or should have) an “apolitical judiciary” and that such a judiciary is “independent of politics”. However, as I’ve shown, we actually have neither, and in a lot of ways, both of these ideas are themselves fundamentally unconstitutional. However, as Justice Stephen Breyer said recently, in order for the courts to have the ability to have their judgments followed, they must be seen by the public as being both apolitical and independent of politics in order that everyone follows their decisions whether they agree with them or not: “If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches.” I will put aside for now the laughable notions that judges are not politicians and that the public does not see them as politicians. However, Justice Breyer makes an important point; in order for the courts to have power to get their will followed, the courts must have such an impervious and unassailable public reputation such that we all collectively decide to accept and follow their decisions even if any of us completely disagree with any of them. Despite the fallacy of having them, though, the American system has neither an “apolitical judiciary” nor one that is “independent of politics”.
On the other hand, due to Marbury v. Madison and Cooper v. Aaron, we do have judicial supremacy in this nation. However, this judicial supremacy only exists as long as the courts remain in the good graces of both the public and the elected branches. Because of this notion, Democrats actually have many options to either cow or neutralize the stacked rightwing judiciary as long as they control Congress and the White House; in fact, even if Democrats only control one or the other, they have options to neuter the stacked rightwing judiciary. I will go through a few of them below. The fundamental premise underpinning all of them is finally accepting as a popular culture that we have neither an “apolitical judiciary” nor a “politically independent judiciary”.
JURISDICTION STRIPPING
The first of these options is jurisdiction stripping. The Constitution only establishes a supreme court, and it leaves to Congress the ability to establish lower courts. The Constitution also prescribes the US Supreme Court’s “original jurisdiction” (the ability to directly hear a case between two parties) and says that in all other cases, the US Supreme Court has “appellate jurisdiction” (the ability to hear a case as an appeal from lower courts). However, the Constitution also gives Congress the ability to make and define the jurisdiction (original and appellate where appropriate) of the lower courts which it creates (any creation of Congress is axiomatically constrained by Congress if it so wishes), and the Constitution also gives Congress the ability to define the US Supreme Court’s “appellate jurisdiction… with such [e]xceptions[] and under such [r]egulations as the Congress shall make”. With this in mind, if the stacked Republican federal judiciary becomes an obstructive intervention to prevent Democratic governance, Democrats can simply pass a law that abolishes the original jurisdiction of the lower federal courts to adjudicate the constitutionality of any statute. This would then automatically abolish the supreme court’s appellate jurisdiction over such laws. Such a law would render the courts powerless to do anything to prevent Democratic governance.
CREATION OF A NEW APPEALS COURT
Another policy option available to Congress is the creation of a brand new appellate court, one that sits above the current circuit courts and below the supreme court. Congress can mandate that such an appellate court would be required to follow all existing supreme court precedent, which would then cause no conflict with the Constitution’s mandate of “one supreme Court”. With this new appellate court, as soon as it is created, a Democratic administration and Congress can fully staff it with their own appointees. Then, Congress can modify the federal judiciary’s appeals process through statute such that all appeals from the district and circuit courts have one final appeal ending at this new appellate high court and simultaneously abolish any and all appellate jurisdiction from this new appellate court to the supreme court. This would then cause all cases in the federal judiciary to end their adjudication at the hands of a court where Democrats control all the judgeships and prevent the stacked supreme court from having any ability to overturn this new appellate court’s rulings. As long as Congress puts in a provision in the statute which creates this court that it is required to follow existing supreme court precedent, it should not run afoul of the Constitution even if there is no appeal allowed by statute from this new appellate court to the supreme court.
ABOLISH THE LOWER FEDERAL COURTS
Similar to the previous two options, another option to constrain the ability of the stacked supreme court to issue decisions is to just abolish the lower federal courts entirely. Because the Constitution allows Congress to create lower courts in the federal judiciary, it is implicit that it can also abolish them, for it is axiomatic that for anything Congress creates, Congress can also destroy. If Congress were to abolish the lower federal courts, it would automatically abolish their original jurisdiction to adjudicate anything, including the ability to ascertain the constitutionality of any statute or move. There is an open question regarding what happens to the judges who used to sit on these courts, and it was never answered after Jefferson repealed the Midnight Judges Act of 1801 and eliminated all judgeships that the Federalists created and filled on their way out. The precedent and legal move here is not clear, but in Stuart v. Laird, the US Supreme Court refused to order Congress and the President to reinstate judges whose courts had been abolished in that repeal. If Congress were to guarantee a lifetime pension for these judges at equal compensation to what their contemporaneous salary is, it might be enough to deal with the Compensation Clause of the Constitution that says judges’ salaries cannot be decreased while they are in office. It should also be noted that Congress has abolished another lower court before; in 1913, Congress abolished the Commerce Court. However, in order to get around the Compensation and Good Behavior Clauses, Congress reassigned the Commerce Court’s judges to existing federal courts around the country. There are always ways around the questions, and if a Democratic government is being unduly obstructed by a stacked Republican federal judiciary, there should be no option taken off the table. Democrats cannot take constitutional hardball off the table if the stacked federal courts continue McConnell’s obstruction even when he has no power to obstruct.
REPEAL THE ALL WRITS ACT
As Alexander Hamilton noted in Federalist No. 78, the Constitution does not give the federal courts any power other than that of the pen – the power of “judgment”. This begs the question: How do courts get their decisions enforced? In the tradition of English Common Law (which the Untied States follows as well), the ability for courts (i.e. judges) to get their decisions enforced is through the issuance of writs. Writs are formal orders written and signed off on by the judge on behalf of the court. With writs in hand, statute is required to order an enforcement agent (usually law enforcement) to actually enforce the orders in the writ. In the United States, the federal statute which allows courts to issue writs and have those writs be carried out by law enforcement is the All Writs Act. The Constitution gives the authority to the federal courts the ability to issue only one writ, the most famous one: habeas corpus. All other writs are allowed to be issued by the federal courts due to the All Writs Act – an act of Congress.
The most common writs in the English Common Law tradition are certiorari, habeas corpus, mandamus, prohibition, procedendo, quo warranto, scire facias, coram nubis, and subpoena. Certiorari is the writ which an appellate court issues to a lower court in order to review the lower court’s judgement for accuracy in applying the law when the superior court’s appellate jurisdiction is merely discretionary and not mandatory. Habeas Corpus is the writ which allows a prisoner to challenge in court the lawfulness of his/her detention and go before a judge to make such a case. Mandamus is the writ where a court mandates someone to do an action. Usually, the writ of mandamus is issued by a superior court to an inferior court to make the inferior court do something that it might not do otherwise, but mandamus can also be issued to individuals or institutions to force them to do something (e.g. Texas Third District Court of Appeals issuing a writ of mandamus to Green Party candidates last year ordering them to remove themselves from the ballot for US Senate). Prohibition is the writ that a court issues which prevents someone or something from doing an action. Usually, the writ of prohibition is issued by a superior court to an inferior court to prevent the latter from taking certain actions, but it can also be issued to non-judicial entities to prevent them from taking certain actions. Procedendo is the writ issued by a court to force a lower court (or someone else) to proceed to final action. Quo Warranto is the writ issued to a person ordering them to provide legal justification for an action which they took. Scire Facias is the writ issued to “show-cause”, essentially an order for the recipient to show why they took an action. Coram Nubis is issued by a court to correct a previous action or judgment made by the court. Lastly, a subpoena is a writ that orders the production of testimony, either documentary or in-person.
In the US federal judiciary, almost all of these writs have been abolished. These days, the “writ” which federal courts issue in order to carry out their judgments is an “injunction”. Depending on the nature of the order, injunctions are essentially either writs of mandamus or prohibition. In order to issue injunctions, though, the federal courts rely on the All Writs Act. If it were not for the All Writs Act, the federal courts’ judgments would only be words on a piece of paper. However, when they issue a “writ” (read: injunction), they are ordering someone or law enforcement to take action that would fully carry out that judgment. This necessarily creates the situation that in order for the federal courts to have the power of enforcement, they rely on a statute of Congress, and anything Congress passes, it can repeal. If a Democratic Congress runs into complete Republican obstruction by the courts, they can repeal the All Writs Act and prevent the courts from being able to order compliance with their judgments. The federal courts enjoy the privilege of having their decisions carried out at the pleasure of Congress; if Congress is no longer pleased enough to allow the federal courts this privilege, Congress can repeal the law that provides for this privilege.
END ALL FUNDING FOR THE FEDERAL COURTS (EXCEPT JUDGES’ SALARIES)
Congress is in control of the power of the purse. No funds may be withdrawn or spent from the US Treasury without a law passed by Congress authorizing such action. This is also true for the funding of the federal courts. Every year, in order for the courts to receive funds to turn on their lights, maintain their libraries, employ law clerks, upkeep their buildings, and all other actions requiring funds, Congress must first appropriate those funds and allow the US Treasury to deliver them to the courts. If a Democratic Congress and President decide that they are no longer happy with the behavior of the federal courts, they can simply refuse to fund some part or all of the federal judiciary in the next budget. This can be explicit such that Congress orders that no funds from the US Treasury can be spent in order to enforce a specific judgment, or they can just end all funding completely. In this regard, the federal courts are at the mercy of Congress to be able to do anything. If Congress does not provide them funds, they will not be able to function. The lone exception is judges’ salaries, but Congress can easily pass a budget for the courts which only funds judges’ salaries but does not provide any other funding, thus forcing the courts to close their doors, fire their clerks, shut down their libraries, and stop paying their electric bills.
ABOLISH (OR DEFUND) THE US MARSHALS OR ORDER THE US MARSHALS TO STAND DOWN
The law enforcement arm of the federal judiciary, the agency which actually carries out the courts’ judgments and edicts, is the US Marshals. The US Marshals, though, are not actually part of the judicial branch of the government. Instead, the US Marshals are part of the Department of Justice, which is part of the executive branch of the government. As such, even though the courts might order the US Marshals to do something in furtherance of their judgment(s), the final call to allow the US Marshals to actually follow and execute that order is under the control of the Attorney General and ultimately the President. If the President wants to, he/she can issue an executive order that mandates the US Marshals to stand down and not follow an order of the courts. Since the DOJ is part of the executive branch, the President (the Executive) has final say of anything that happens through the DOJ. Also, similar to the previous option, if Congress wishes, it can defund or even abolish the US Marshals and make it such that the federal courts have no agency which will carry out their orders. Since the federal courts enjoy only the power of judgment but neither the sword nor purse, they are entirely reliant on the other branches of government to carry out their judgments. They rely on Congress to create and fund an agency that will carry out the courts’ decisions, and again, anything that Congress creates, it can also destroy. They also rely on the President to use his control of the executive branch to carry out the judgments of the courts; as such, the federal courts’ enforcement is ultimately in the hands of the President. If either Congress or the President are no longer happy with the federal courts, they can simply prevent the US Marshals (or any other law enforcement agency) from carrying out the courts’ decisions. The courts can only enjoy the power of enforcement as long as they stay in the good graces of the President and Congress.
ELECTED BRANCHES REJECT JUDICIAL SUPREMACY
Another option at the hands of the elected branches, and the one which is the most aggressive and “nuclear”, to deal with the federal courts is to entirely reject the doctrine of “judicial supremacy”. As the judiciary does not innately have any power of enforcement, their claim to judicial supremacy rests entirely upon the acquiescence of the elected branches to judicial supremacy. Judicial review (and judicial supremacy) is not enshrined explicitly in the Constitution, and there has been a lot of constitutional scholarship that argues that judicial review is itself unconstitutional. As such, in order for the courts to have the powers and abilities which they enjoy, they must maintain an impervious and impeccable popular and political reputation. Since they rely on the elected branches to carry out their decisions, they are ultimately at the mercy of The People. If The People decide that they are no longer happy with their federal courts, they can elect politicians into office who entirely reject judicial supremacy, and once those politicians are installed in their offices, they can use the powers of Congress and/or the Presidency to reject judicial supremacy. All this would require is a statement from either Congress or the President (preferably both simultaneously if it were to happen) saying something to the effect of, “We do not accept the US Supreme Court’s decisions on constitutionality as final because we believe Marbury v. Madison was wrongly decided, and as such, we view the judgments of the courts as only advisory, not binding.” If this were to happen, the courts have no power at all.
In fact, all of the above policy prescriptions are actually premised on a rejection of “judicial supremacy”. Right now, the People and elected branches of government of this nation accept Judicial Supremacy only because the courts have a decent enough popular reputation that we all will follow the edicts of the courts for the good of our own institutions. However, at any point in time, the People and/or the government’s elected branches can decide that the courts are no longer credible. Based on polling, a lot of Americans are already there, especially on the Democratic side, thanks to the chicanery and procedural violence of Republicans. This is also not the first time that this has happened, and multiple times before, the elected branches refused to enforce the orders of the courts because the courts’ popular reputation and credibility had been completely destroyed.
The two most famous examples of this are President Andrew Jackson refusing to enforce a writ of mandamus issued by the US Supreme Court in Worcester v. Georgia to the State of Georgia in order to stop the forced removal of Cherokee Native Americans from the state’s territory and President Abraham Lincoln refusing to reinstate the writ of habeas corpus after Lincoln suspended it during the Civil War despite Chief Justice Roger Taney declaring that such a suspension was unlawful. Both Presidents would go on to be reelected, so clearly, the populace was not enamored with their courts enough to punish the politicians who rejected Judicial Supremacy. The elected branches of government have rejected Judicial Supremacy before, and that rejection was reaffirmed by the People afterwards. If the need arises again, it can happen again, and because of Republicans’ procedural violence and chicanery, the federal courts’ popular reputation is at a lower point today than any since the turn of the 20th Century. Once the People reject Judicial Supremacy, though, it will take decades for the federal courts to rebuild that credibility and trust such that the People accept it again. Rejecting Judicial Supremacy is a huge step, and if we are to continue to accept Judicial Supremacy (which I believe we should), the policy prescription that would continue this doctrine is the last one below.
COURT PACKING
Finally, we come to the one aspect to change the federal courts with the only policy that accepts Judicial Supremacy: Court Packing. While some Democrats and liberals have sought to change the phrase “court packing”, I will use it explicitly because I own my preferred policy prescription to neuter the federal courts. Court Packing is most (in)famous for being the move which nearly brought down the then-extremely popular President Franklin Delano Roosevelt. As the US Supreme Court kept striking down his New Deal legislation, he proposed an expansion of the court by at least six judges – all of whom he would appoint and would thus create a liberal majority. The population revolted by writing hundreds of thousands of letters to members of Congress asking them to reject the proposal. Roosevelt’s extreme supermajorities in both Houses of Congress killed the proposal, and Democrats lost numerous seats in the midterm elections of 1938 right after the largest nationwide Democratic landslide of all time in 1936. After the midterms, the Conservative Coalition of Southern Democrats and Conservative Republicans joined together to prevent President Roosevelt from passing anymore New Deal legislation, and the New Deal came to an end. Until the nation entered World War II in 1941, President Roosevelt’s legislative agenda was essentially dead on arrival in Congress, and it required the attack on Pearl Harbor to get his own Party to cooperate with his legislative agenda again.
President Roosevelt’s court packing plan failed because the People at the time still accepted Judicial Supremacy because the federal courts had restored their reputation after the disgrace of Dred Scott v. Sanford. However, it is important to note that even President Roosevelt was implicitly accepting Judicial Supremacy through this policy proposal. When he tried to expand the court, he accepted that the courts were the final arbiters of the meaning of the Constitution; he wanted to change the meaning of the Constitution by changing the composition of the courts. Unlike President Lincoln or President Jackson, President Roosevelt never rejected Judicial Supremacy; he merely tried to control its utility. As someone who does believe in Judicial Supremacy, I believe that this is actually the least dangerous option of all the policy proposals at Congress’s and the President’s hands because like President Roosevelt, court packing implicitly accepts Judicial Supremacy while all of the others reject it.
The political tide on court politics has moved light years in the last five years – and especially in the last year. Last year, Democratic politicians across the board said that if Republicans put Amy Barret in the seat occupied by the late Justice Ruth Bader Ginsburg, then-Senate Minority Leader Chuck Schumer made it known to the public through his emissaries that “nothing is off the table”. Democratic politicians across the ideological spectrum talked about court packing. Even though then-candidate Joe Biden refused to endorse (or discount) court packing, everyone in the nation knew that if Democrats gained unanimous control of the federal government, court packing was a viable, feasible option. This was not a secret, and it was not hidden from the public.
If the People honestly, truly thought that court packing was a poison pill and unacceptable, they would not have taken the risk of giving the Democratic Party unanimous control of the elected branches of the federal government. The People knew that court packing was a possibility and perhaps even a probability after the forced installation of Amy Barrett onto the US Supreme Court. That the People still gave Democrats unanimous control of the federal government is proof enough that the popular reputation and credibility of the federal courts has been driven into the grave. Credible polls and polling averages on the topic show an extremely interesting dynamic as well.
Republicans unsurprisingly oppose court packing roughly 90-10. Democrats unsurprisingly support court packing roughly 70-30. The most interesting and fascinating statistic though is that Independents oppose court packing roughly 60-40. This all averages to around 42% of the nation who support court packing right now based on credible polling information. That Independent number is the most revealing, though; if court packing was really, truly a poison pill and unacceptable policy to the “middle of the country” (a phrase that I absolutely detest but which makes my point at the moment), at least 75% of Independents oppose would oppose court packing. The political tide has shifted by light years on court packing in the past few years. As recently as 2019, probably around 85% or more of the country opposed court packing (myself included). However, in 2021, around 42% now support it. If the Independents’ support can be brought to at least 55%, Democrats can feasibly claim they have a popular mandate to pack the court(s).
For everyone that thinks this will never happen, I want to discuss and describe another action that was previously unthinkable. Starting in 1993, Republicans led by then-Senate Minority Leader Bob Dole of Kansas, at the urging of an increasingly radicalized Republican base, began filibustering nearly everything to prevent Democratic President Bill Clinton from accomplishing anything, something which was entirely unprecedented in the history of the US Senate. After Republicans took the majorities in Congress for the first time in decades after the 1994 midterms, they brought all Senate (and House) action to a halt along with Democratic President Bill Clinton’s veto. Fast forward to 2001 when Democrats take the Senate majority while Republican George W. Bush was in the White House, and the Democrats returned the favor and obstructed nearly everything on the Senate floor just as Republicans had to President Clinton. In the 2002 midterms, in the aftermath of 9/11, Republicans retook the Senate majority. Democrats then repaid Republicans another favor that was wrought on them in the early years of the Clinton administration; they filibustered almost everything, especially judicial nominees.
Frustrated by the filibusters of Republican judicial nominees, then-Senate Majority Leader Bill Frist of Tennessee and then-Senate Majority Whip Mitch McConnell of Kentucky first floated the idea of using the “nuclear option” to eliminate the filibuster for judicial and executive branch nominees. This was seen as absolutely radical and unheard of, and there was uproar, and polling showed that the broader population opposed the move (never mind for a second that probably 80%+ of the common population probably does not even know what a ‘filibuster’ is let alone the ‘nuclear option’). Fast forward to after the 2008 general election where Democratic President Barack Obama won the White House and Democrats expanded their majorities in both houses of Congress to levels neither party had seen in decades. Now, Republicans led by Mitch McConnell filibustered absolutely everything; McConnell even once filibustered his own bill.
This extended to President Obama’s judicial nominees. Not only did Republicans filibuster all nominations, but they also refused to follow the Senate tradition of allowing multiple district court nominees to be voted on simultaneously. They insisted that each individual nominee be considered separately, which took up thirty hours of floor time for each nominee – another move to prevent the Democratic Congress and President from doing anything, including appointing judges. Senate Democrats led by then-Senate Majority Leader Harry Reid of Nevada finally led the Senate Democratic Caucus to use McConnell’s own arguments from 2003 and use the nuclear option to eliminate the filibuster for executive and judicial nominations other than the US Supreme Court. In 2017, McConnell and his Republican goons used the nuclear option to eliminate the filibuster for US Supreme Court nominees, and in 2019, McConnell and his Republican goons used the nuclear option again to reduce the debate time for executive appointments from thirty hours to two hours. At this point, the legislative filibuster is on life support. If Democrats manage to expand their Senate majority next year by at least two seats and hold the US House (both of which are feasible if difficult), the legislative filibuster is dead, and whenever the Republicans next have a federal trifecta, they will kill it, too, if the Democrats have not already done so.
What seemed to be all but impossible and terrible two decades ago is now on the verge of happening. The notion of court packing stopped being a poison pill and entered the mainstream of political discourse just over the last year. There is plenty of time to make it a popular and even necessary policy. As I have laid out, of all the policy options a Democratic government would have to neuter the federal courts, the one which is the least problematic to Judicial Supremacy is court packing. Let us see what happens with court packing as it continues to be discussed and contemplated in the common parlance over the next few years. Also, let us remember that the US Supreme Court is on the verge of overturning Roe v. Wade by the end of July 2022. There is nothing that will fire up the Democratic base and drive them into a fury of revenge more than an overturning of Roe v. Wade. If the US Supreme Court does it (and I sincerely believe it will), all bets are off for what Democrats will do going forward. In that sense, I actually want the US Supreme Court to overrule Roe v. Wade. The second that ruling comes down is the second when the entire Democratic Party both as an institution and as a voting base will wake up and begin a political war against both the Republican Party and the federal courts – led by the vast majority of Americans who are pro-choice. Women, especially, will not standby as they see their right to bodily autonomy erased, and they are already a core voting bloc of the Democratic Party. “Hell hath no fury like a woman scorned.”
There is nothing sacred about the number Nine. There never has been, and there never will be. The size of the US Supreme Court has changed repeatedly throughout history from a low of Five to a high of Ten. Changing it now would be no different than that which was done at any previous time in history. The fact that the US Supreme Court is currently made of Nine judges is merely an artefact of the Judiciary Act of 1869; it is as arbitrary as was the initial size of the US Supreme Court being set to Six in the Judiciary Act of 1789. Also, for whatever Justice Stephen Breyer believes about the size of the US Supreme Court and whatever he might say about it or anything else regarding this topic, nothing he nor any judge says matters. The size of the federal courts, all of them, is solely the prerogative of Congress. What Justice Breyer or any other judge, sitting or otherwise, thinks or says about this topic is completely and entirely irrelevant. Justice Breyer’s words on this topic should be given just as much respect by Democrats as Mitch McConnell and his fellow Republican goons gave to Justice Ruth Bader Ginsburg’s dying wish of hoping she would “not be replaced until a new president has been installed”.
To be sure, Justice Ginsburg’s dying wish was also entirely irrelevant. She might have had a belief and wanted something in order for the nation to stay as together as possible. She might have wanted it happen with every fiber of her being. But it did not matter because the nomination and confirmation of a judge is solely the prerogative of the President and the US Senate; what any judge thinks about this is entirely irrelevant. Just as it was irrelevant to McConnell and Republicans that Justice Ginsburg did not want to be replaced until after the election, it is just as irrelevant what Justice Breyer thinks about the size of the court. His words are his opinion and nothing more. He is entitled to his opinion, but he is not entitled to dictate the legislation passed by Congress and signed into law by the President. Also, for all McConnell and Republicans love to crow about Justice Ginsburg saying that “nine is a good number” in 2019, that, too, is just as irrelevant. Even more than that statement’s irrelevance, though, McConnell and his Republican goons do not get to pretend to care about something Justice Ginsburg said about the size of the court in 2019 when they spit on her dying wish. You either care about everything she said about the composition of the court, or you do not care about any of it.
It’s time to pack the court – with at least four more judges and preferably at least six more judges. No more unilateral disarmament. Democrats have a duty to their constituents to pack the court. And once Democrats pack the court, they should immediately give statehood to the District of Columbia, Puerto Rico, the US Virgin Islands, Guam, Northern Mariana Islands, and American Samoa. And after they add these six territories as states, they should increase the size of the US House of Representatives to at least 879. It’s time to fight fire with fire. Democrats can no longer bring a paper sword to a battle where the opponent Republicans are bringing thermonuclear weapons.