It’s Time for Democrats to Get Serious About Reforming the Supreme Court

Donald Trump's legacy will live on in the federal courts long after he leaves office.

[Photo: United States Supreme Court Justice Brett M. Kavanaugh listens during an event.]
U.S. Supreme Court Justice Brett Kavanaugh wrote the majority opinion in AID v. AOSI, affirming what conservatives do best when it comes to the First Amendment: using it to find fresh new ways to discriminate. Jabin Botsford/Pool/Getty Images

Here’s a nightmare scenario for you. In 2020, Democrats could win back the White House, the Senate, and maintain their majority in the House of Representatives. They could pass a slate of dream progressive policies like “Medicare for All” and the Green New Deal. And it won’t matter—because the current U.S. Supreme Court, stacked with conservative ideologues, will overturn all of it.

This keeps me up at night, because the nightmare scenario has a very strong chance of becoming reality unless progressives get serious about reforming the Court.

It’s hard to keep track of all the terrible things that have happened and continue to happen daily, hourly, and by the second under President Donald Trump. But the scariest thing about the Trump presidency isn’t the barrage of apparent criminal activity, the incoherent public appearances, or even the fact that peace in the Middle East is in the hands of an idiotic failson who got into Harvard because his dad donated millions. The scariest thing is that Trump has been more successful than any other president in stacking our federal courts with extreme, right-wing, unqualified judges.

These judges are confirmed for life. Trump’s judges will outlast his presidency. The nightmare that is Donald Trump won’t end even after he leaves office.

Trump’s justices have been vetted by the Federalist Society, a shadowy conservative group that mobilized in the years after the Supreme Court’s historic decision in Roe v. Wade. The organization grooms law students to become hardliner anti-choice judges who oppose reproductive rights and the social safety net, but support wholesale deregulation and unfettered personhood rights for corporations. These are not neutral judges who “follow the law,” or umpires who call “balls and strikes,” as they frequently claim in their confirmation hearings. They are partisan hacks who are hand-selected by billionaires to stand in the way of progress.

Right now, right this very minute, Trump’s judges are acting as a rubber stamp on his worst impulses, upholding the Muslim ban, allowing red states to defund Planned Parenthood, overturning the Affordable Care Act (yes, somehow, conservative judges are still attacking the ACA), and gutting labor unions. Donald Trump’s policies aren’t particularly popular, but progressive ideas are. When Trump is gone, his judges will find other ways to enshrine conservative “values”—most likely by overturning popular, democratically enacted legislation.

So, anyone running for the 2020 Democratic nomination can spend all day campaigning on broadly popular proposals like Medicare for All, but unless they also embrace serious court reforms, those proposals are doomed. Those reforms might mean imposing term limits on future justices or increasing the number of justices on the Supreme Court from nine to 13 or 15—an idea that seems to have the support of Pete Buttigieg and has at least piqued the interest of U.S. Sens. Kamala Harris (D-CA), Elizabeth Warren (D-MA), and Kirsten Gillibrand (D-NY). Allowing a Democratic president to fill four (or six!) seats would be the quickest way to dilute the conservative majority’s influence over our lives, and there is precedent for the idea. Nine is a completely arbitrary number: The Constitution is silent as to how many justices can or should serve on the Supreme Court, and throughout history the number of justices serving has fluctuated. (In 1789, Congress set the number at six, then increased it to seven, then nine, then ten, then back to nine in 1869. Why not 13 or 15 in 2021?)

Reforming the Supreme Court may be a bold idea but it isn’t a crazy one. Keep in mind that four of the nine justices on the bench were installed by presidents who lost the popular vote. One of those, Justice Brett Kavanaugh, straight-up attacked Democratic members of the Judiciary Committee who questioned him about credible sexual assault allegations during his confirmation hearing—and many of those Democrats are running for president in 2020.

This is an institution that represents a threat to popular democracy and does not deserve to be protected from the winds of change. Centrist Democrats can bang their heads on their desks until they’re concussed, but doing nothing about the Supreme Court in 2020 is simply not an option.