The Court abandoned nonpartisanship when it canceled the recount, the consistent method for resolving election disputes for two centuries,[i] to choose Bush over Gore in 2000, then gave Republicans control of state legislatures and the U.S. House by protecting state legislative gerrymandering to allocate legislative seats in conflict with the share of votes. Those decisions also gave Trump a chance to convince state legislatures to give him their electoral college votes despite their state’s popular vote for president.
In Shelby County v. Holder, the Court ended federal protection against manipulation to prevent the ruling party from blocking the other party’s voters from casting ballots.
Its decisions on gun rights threatened nonpartisan election workers, elected representatives, and demonstrators advocating causes gun owners despise. Coupled with its decisions about the attack on the Capitol and the insurrection clause, it made honorable and nonpartisan election administration like living in a war zone.
Then it did what honest counting of votes couldn’t by overturning Roe v. Wade, leaving women scrambling for reproductive care, and overturning protections for Americans of ordinary income.[ii]
I no longer have any confidence in the Court to get anything right, including protection of our democratic system of government.
So what can be done?
“President Biden believes that Congress should pass binding, enforceable conduct and ethics rules….” I agree, and Congress does have that power. But the big problem is who sits on the Court.
“President Biden supports a system in which the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court” – an excellent proposal but the Constitution’s Art. III says justices serve for life, so Biden’s proposal would require two-thirds of both houses of Congress and three-quarters of the States for a constitutional amendment. That won’t happen.
I have a third proposal. Congress can authorize the appointment of more justices. The Court has had as few as five and as many as ten justices. There’s no constitutional bar to fifteen. Although it would occasion a battle, Congress can change the number of justices by simple majority. I would add at least four justices.
The main counter-argument is it would politicize the court. That sounds like a joke – the court couldn't be more political than it already is. Some fear that when the other party gets in power, it would respond in kind and we'd have a Court of hundreds. But going back-and-forth that way might wake people up to the need for true nonpartisanship. Anyway, it’s not clear that restraint on one side would be matched by restraint on the other.
So, I have a fourth proposal. The Supreme Court Building was completed in 1935, one hundred forty-six years after the Court’s founding. The Constitution doesn’t specify a building, budget, office equipment, marshals or security. If Democrats played budget hardball like Republicans do, all that could be gone and maybe some unjustices would get the hint and leave.
[i] Stephen E. Gottlieb, Bush v. Gore Typifies the Rehnquist Court=s Hostility to Voters, in The U. S. Supreme Court and the Electoral Process 58 (Washington, D.C.: Georgetown Univ. Press, David Ryden, ed., 2nd ed., rev., 2002).
[ii] Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 212-26 (New York: NYU Press 2016).
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.
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