I wrote a column six months ago headlined, “The Supreme Court Is Already Packed: Democrats Need to Unpack It.” We now see the consequences of a packed court as it has moved to the Extreme Right.
In a counterpoint to my column, author Christian Adam suggested that “the tantrum being thrown about ‘packing’ the Supreme Court is simply because ideological liberals are no longer in control.” He is correct that each party is likely to “scream” when the other side wins with extreme decisions. Still, the problems are greater than political angst and anger.
While liberals are upset because of recent decisions, conservatives would be equally stressed if comparable extreme positions had favored the liberal point of view.
I ask those celebrating current decisions to imagine the possibility of an extreme liberal ideology handed down in the future. Consider a very liberal court is ruling an absolute separation of church and state and requiring taxes on all church properties. Imagine if all weapons had to be turned over to the government. Throw in the requirement that sex education will be taught in all schools. Conservative arguments to change the court would reach cosmic heights.
Three such consequential decisions would not only rock the conservative world but be bad for democracy if enacted by the Supreme Court. The court just did that with an extreme conservative agenda.
When the court decides to rule in a manner that brings chaos to the nation with oppositional positions heated to near violence, we need to examine the nature of the court.
Three new Republican appointees, in lockstep, voted for legislation changing abortion rights, gun control and climate change, each a culturally divisive issue. Dramatically, the court abandoned the “standing by things decided” mentality of incremental change most often used by the court, instead making life-changing alterations for half of Americans. The Supreme Court moved from a judicial referee to a law-creation body and has already agreed to review more hot-button issues next term.
This movement is ironic since conservative politicians of our era have long pontificated against activist judges, suggesting that strict adherence to the constitution is the ideal. The current conservative-oriented judges paid no heed to such beliefs. In doing so, the court effectively ended the federal government as we know it. Given the court’s makeup, there is concern that the present radical court could dominate for decades.
Steps can be taken to modify the court, although all are very difficult. Much of the public is already in favor of altering appointments for life. No state supreme court allows lifetime tenure and typically requires a term limit of 20 years.
Unfortunately, most experts agree that such an alteration at the federal level requires an amendment to our constitution, a very arduous task.
Age limits are also a plausible change. Hovering over the elderly justice’s demise is unseemly and unwise. We have been fortunate in the cognitive capabilities of recent justices, but that is not a certainty.
Democrats could increase the court size from nine to 13, a change that becomes more appealing as the court becomes more ideological. Another option is to increase the size of the court to 12, thereby balancing our current court. Tied decisions allow lower-court decisions to stand, thus also reducing a dominant ideological court to dominate.
The actions of Sen. Mitch McConnell, delaying the consideration of Merrick Garland and then rushing through the confirmation of Amy Coney Barrett days before Joe Biden’s election, corrupted the very balance of power and adherence to the founding principles that the Republicans purport to hold in such high esteem. Both parties should support congressional efforts to tighten the process to prevent similar actions in the future.
Given the fierce political divisions of the country, changes are unlikely soon. This issue is of such critical importance to the future of our country, however, that it needs to be put into the public discussion in coming elections.
The extreme rulings of the current court have put our beloved country at war with itself like few other times in our history. Such power in the hand of an unelected body should not stand. It may take time, but the Supreme Court needs to be changed for the sake of our democracy.
