The rushed confirmation of Justice Amy Coney Barrett has, for the first time in decades, made Democrats think seriously about progressive reforms to the Supreme Court. Today, conservatives hold a 6-3 majority on the court, illegitimately engineered by Donald Trump and Mitch McConnell. This stark reality has radicalized the base. It has even made some Democratic senators consider using their power to achieve deep structural change, as opposed to cosmetic bipartisan redecorating.
Unfortunately, those senators are likely to be in the minority until at least the beginning of 2023. And as long as McConnell remains the majority leader, he is unlikely to allow any reforms (or legislation or democracy) to go forward in the Senate. But Democrats must continue to plan for the day when they have enough seats in the chamber to implement a plan that will mitigate Republican lordship over the Supreme Court.
The easiest solution to the Republican stranglehold is court expansion, or increasing the number of justices. This could be achieved through a simple legislative act and would be inoculated against constitutional challenge because it’s been done a bunch of times before. I mean, what would Chief Justice John Roberts do—lock the doors? The Supreme Court doesn’t have an army, so unless he has ninja skills I don’t know about, there’s little he could do if new colleagues show up for work.
The problem is, court expansion sounds radical to people who don’t know how the Constitution works. It sounds political to people who don’t realize that increasing the number of justices is the best way to avoid the bare-knuckled partisan fight that happens every time one of the nine justices dies or retires. This has led some Democrats to advance alternative reforms that sound modest but would be, in fact, much more difficult to pull off, because they’d require a reimagining of the Constitution.
The most popular of these ostensibly sober but fundamentally improbable proposals is term limits, which got a substantial boost in September, when Representatives Ro Khanna, Joe Kennedy III, and Don Beyer introduced a bill to restrict the nine justices to single 18-year terms. Their proposal would mean that each president would get to appoint at least two justices to the court per four-year term. The idea is that this would make the court more responsive to electoral politics and end the current practice of letting justices wield power for 30 or 40 years.
Term limits have substantial support, even across party lines. Fix the Court, a group that has been pushing this idea for a while, found that 77 percent of Americans favor some form of term limit. The problem is that they are likely unconstitutional. The Constitution says justices serve “during good behavior,” which functionally means they serve for life, absent impeachment. Term limit advocates argue that they could get around this by moving term-limited justices down to the federal courts. They would still get to serve for life, just not entirely on the Supreme Court.
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It’s a neat trick, one that I think would be constitutional. Unfortunately, I don’t sit on the Supreme Court. The nine people who do are unlikely to agree that they can be kicked off the nation’s highest court—particularly the five archconservative justices who claim to be guided strictly by the text of the Constitution and Ouija board messages from James Madison. The proposal would be dead on arrival at the Republican-controlled court that people are trying to reform.
The recognition of this reality has led some Democrats down a more complicated road: jurisdiction stripping. It surprises some people to learn that the Supreme Court’s power to declare acts of Congress unconstitutional is not actually in the Constitution. That power, called judicial review, was claimed by the court in the landmark 1803 case Marbury v. Madison, and Congress has never stopped it.
One solution to illegitimate Republican control, put forward by Ryan Cooper in The Week and Jamelle Bouie in The New York Times, among others, would be for a Democratic-controlled Congress to pass legislation stripping courts of the authority to rule on the constitutionality of certain classes of laws. The Constitution spells out limited categories of cases over which the Supreme Court has original jurisdiction, meaning the ones you can take to the Supreme Court without going through the lower courts first. For everything else, the Constitution grants the Supreme Court appellate review, which technically can be limited by Congress.
But there’s a hitch: Even if we assume Congress can limit the kinds of cases the Supreme Court reviews, a court that fails to act is just as damaging to rights as one that acts too much. Consider 2018’s gerrymandering case Gill v. Whitford, in which the court ruled that it did not have the power to strike down gerrymandering that favored Republicans. That decision alone ensures that when we redraw congressional district lines, GOP-controlled state legislatures will be able to gerrymander their candidates into office despite the will of the electorate.
This shouldn’t be a surprise. Jurisdiction stripping is a Republican idea. During George W. Bush’s administration, the GOP-controlled House voted to exempt silly Pledge of Allegiance laws from judicial review. Moreover, vulnerable communities tend to need judicial review, because we can’t always anticipate what evil the Republicans will think of next.
What’s truly wild, to me, is that jurisdiction stripping is being presented as some kind of moderate alternative to the “radicalism” of court expansion. Ending or limiting judicial review would involve upending the way our system of checks and balances has worked since the earliest days of the country; court expansion would involve changing the number of seats in a body that has been changed multiple times already. Jurisdiction stripping would involve nerfing the power of the Supreme Court because we don’t like how it uses its power; court expansion would involve minimizing the importance of any single Supreme Court justice so we don’t have to go to the mattresses every time one of them steps down or dies.
Court expansion is constitutional: It has been done before. It is easy: It could be done through simple legislation. It is comprehensive: It could depoliticize the Senate confirmation process and open the door to other changes, like ethics reform. And it is moderate: It wouldn’t involve reinventing the system of checks and balances.
But I may have to wait a while to make that argument again. Until the start of 2023 at least, the Supreme Court is secured for Republicans. Then again, the court is poised to make some abhorrent decisions during the next few years—and that almost guarantees that the idea of court expansion will come back around.
