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Pack the partisan court to restore its legitimacy

During the hearings over the confirmation of Judge Ketanji Brown Jackson for the US Supreme Court, there were lots of questions and comments about whether “court packing” would be a good idea. The principal objection was that packing the Court would destroy its “legitimacy” as a legal, rather than partisan institution.

What legitimacy? The Republican-dominated Court chose Bush over Gore in 2000 by stopping the Florida state court from doing what courts have done for centuries to deal with election disputes – it ordered a recount. The Florida judge handled it exactly right by ordering a statewide recount, not the limited recount Gore had asked for, but a statewide recount based on statewide standards. But the federal Supreme Court stopped it anyway, and, by doing that, crowned Mr. Bush president. Scalia was blunt – he didn’t think his candidate, Mr. Bush, should be embarrassed by a recount. What was legal or nonpartisan about a court that stopped a recount because it liked the winning party?

Since then, the Court eviscerated the Voting Rights Act on the ground of states’ rights. Of course that was outrageous for a Court that claims to read the constitutional text – the language of states’ rights does not exist in the Constitution. But the language of equal individual rights, which the Voting Rights Act was trying to protect, does exist in all three Reconstruction Amendments: the Thirteenth, although you need a little history to understand that the abolition of slavery was designed to give the freed peoples all the rights of citizens, including the right to vote; the Fourteenth Amendment, which guarantees the equal protection of the law; and the Fifteenth, which guarantees the right to vote regardless of race, color or previous condition of servitude. All three give “Congress … [the] power to enforce ….” the Amendments “by appropriate legislation” in almost identical language. The Court had to make up a right which doesn’t exist in order to quash a right the Constitution guarantees three times over.

And just to make the point clear, the Court systematically blocks state court rulings that sustain Democratic objections to state election provisions. And it consistently blocks any and all attempts to eliminate gerrymandering which gives the ins the ability to banish the outs. Plaintiffs in those cases did not propose or favor favoritism – they showed the Court ways to guarantee that voters of both parties were fairly represented. But, heavens, that might give Democrats a fair shot in some states. It could mean Republican judges might have to deal with a Democratic Congress or state legislatures. Wouldn’t that be awful!

I can respect conservative principles with which I disagree but there is no excuse for the Court’s partisanship. The events of Jan. 6, 2021, were hardly necessary to overturn the Constitution. The Supreme Court is dominated by people doing their very best to create a one-party state out of the constitutional democracy they were sworn to protect. That’s treasonous.

I suggested in a prior commentary that, based on adherence to the constitutional text that the Court claims but doesn’t adhere to, Congress can refuse to budget for any but the salaries of the judges themselves, and, in the process, prevent the Court from functioning. Court packing would be more civilized, so I guess I’d take it. We don’t need a partisan “court” in any way, shape or form.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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