How We Can Fix the Supreme Court’s Illegitimate Conservative Majority

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Commentary Law and Policy

How We Can Fix the Supreme Court’s Illegitimate Conservative Majority

Marie Aberger

It’s not enough for our leaders to propose policies that protect reproductive health and LGBTQ rights. They also need a plan to protect those policies from Supreme Court conservatives.

It’s hard to imagine how life could get more challenging. We’re struggling through a pandemic. A severe economic recession is upon us. And we have an incompetent and unfit president.

Even so, Brett Kavanaugh and his fellow conservative U.S. Supreme Court justices are primed to say, “Hold my beer.”

Over the next two months, the conservative justices stand ready to make life even harder—and more dangerous—for women and LGBTQ people during the COVID-19 pandemic. Thankfully, there’s a solution to this coordinated assault on the rights of vulnerable people—but only if Democratic Party leaders are willing to embrace U.S. Supreme Court reform.

But before those reforms can be made, or even considered, we might see the Court inflict damage to vulnerable people across the country. 

Roe has collapsed in Texas, and that's just the beginning.

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For one, the Supreme Court could add to the pain of the recession for millions in the United States. The Labor Department reported Thursday that over 26 million people have filed for unemployment in the past five weeks. Yet the Supreme Court could add to job panic by eliminating the Civil Rights Act’s Title VII protections from workplace discrimination for LGBTQ workers. This is a long-settled law that should not even be up for reconsideration, but they could rule—during a recession—to make it possible to fire workers simply because of who they love or how they identify.

The danger doesn’t stop there. The Court is also poised to strike a major blow to Roe v. Wade—and 47 years of legal precedent—with a ruling on June Medical Services v. Russo.

If the Court sides with anti-abortion extremists, it would open the to door to clinic shutdown laws, while also gutting abortion access in Louisiana by leaving the state with one doctor in one clinic authorized to provide care. In a state 300 miles long and 130 miles wide,  that would essentially eliminate abortion access for anyone who can’t afford access to child care, time off work, and other travel-related costs.

Meanwhile, Republican officials in states like Ohio, Tennessee, Arkansas, and Texas are using the COVID-19 crisis as an opportunity to shut down clinics under the guise of a pandemic response. This not only overrides abortion rights, but it can also interfere with access to contraceptives. With our attention focused on the pandemic, and a major Supreme Court case ruling coming, state officials know this is their chance to keep chipping away at abortion rights.

None of this is a coincidence.

U.S. Sen. Mitch McConnell (R-KY) and Senate Republicans stole the Supreme Court with cases like these in mind. The choreography could not be clearer: McConnell obliterated every democratic norm to steal the seat left vacant after Justice Antonin Scalia’s death in February 2016. After his inauguration in 2017, President Donald Trump promptly nominated Neil Gorsuch for the vacant seat, followed by Brett Kavanaugh about a year and a half later after Anthony Kennedy’s retirement. With their illegitimate Supreme Court majority now in place, conservatives are ready to escalate the assault on women and LGBTQ people.

The only solution to fix McConnell’s theft of the Supreme Court is by expanding the number of seats on the bench.

You may be asking some of the same questions I had when I first learned about the idea of Supreme Court expansion. Is our situation really that dangerous? Won’t Chief Justice John Roberts protect us from judicial extremism?

Well, the stakes are that high—and the COVID-19 pandemic has clearly only raised them even more. While Roberts does a good job of playing a moderate on TV, his decisions from the bench show he is one of the most partisan, conservative justices on the Court.

Take Back the Court, an organization I advise that’s fighting for Court expansion, released a report last year showing that in 42 split-decision cases that Roberts has presided over involving people of color, immigrants, workers, and abortion rights, he voted for conservative outcomes 100 percent of the time.

You might also think: If we add seats, won’t it just start a race to the bottom? The truth is, McConnell has already taken us to the bottom. McConnell and his allies effectively packed the Supreme Court by changing its size until a Republican could be elected president. If progressives unilaterally disarm, there’s nothing stopping Republicans from stealing more seats and continuing their war on women and LGBTQ people.

Once lawmakers come up with a fix to undo McConnell’s theft of the Supreme Court, Democrats should pass additional reforms—such as term limits—to prevent similar power grabs in the future. But adding seats is the only way to ensure those reforms do not get struck down by an illegitimate Supreme Court majority.

It’s not enough for our leaders to propose policies that protect reproductive health and LGBTQ rights. They also need a plan to protect those policies from the Supreme Court. That means being willing to unpack the Court—especially when the Court is doing everything they can to stack all the cards against us.