As a result of Mitch McConnell’s push to replace Justice Ruth Bader Ginsburg after her passing on Sept. 18, it is likely that the Supreme Court will have a 6-3 conservative majority that would unquestionably jeopardize the rights of vulnerable communities. An originalist consensus on the highest court in the land, where a majority of justices believe that the Constitution must be interpreted as through the eyes of the founders, would likely lead to restriction of abortion rights, roll backs on LGBTQ+ protections and the repeal of the Affordable Care Act, to name a few examples.
In response to this future assault on fundamental liberties, Democrats like Mondaire Jones — nominee for House district NY-17 — are advocating for the expansion of the Supreme Court with the addition of four liberal justices if former Vice President Joe Biden wins the presidency and brings a Democratic Senate majority to Washington. This court packing strategy might be necessary to protect fundamental rights in the short term, but it won’t protect them forever.
Any future conservative president and Senate could easily expand the court further to enact their agenda. Will a new political tradition arise that the party in power expands the court to undo the rulings of the previous administration whenever the balance of power shifts? Court packing, as it is currently presented, would leave fundamental human rights in flux every four years. Instead, Democrats ought to embrace an alternative approach to Supreme Court reform.
Brought to the mainstream by Mayor Pete Buttigieg’s presidential campaign, Professors Daniel Epps and Ganesh Sitaraman’s plan would change the composition of the court in a manner that would prevent a conservative hegemony on the high court and guarantee liberties in a more permanent way. The plan advocates for an equal number of liberal and conservative jurists who would also select a number of independent-minded jurists from the circuit court through unanimous consent. If the justices could not unanimously agree on a set of independents, then the court would be unable to hear cases. If the plan was to be enacted, the balance of the court would be as follows: six conservatives, six liberals and an odd number of independent jurists to prevent deadlocked rulings. Conservatives would be selected by the GOP, Democrats would be selected by the liberals, and the justices would select their independent colleagues. Epps and Sitaraman’s plan recognizes that it is almost impossible to completely remove bias from a court of citizens ruling on governmental matters. Many constitutional scholars believe that this could be enacted through law, without an amendment.
This alternative plan is stronger because of its permanence and feasibility. While Democrats are favored to win the Senate, their majority will likely be slim. With moderates like Joe Manchin (D) and Kyrsten Sinema (D) frequently voting for President Trump’s judicial nominees, it may be difficult to galvanize a majority for any traditional court packing plan. Court packing discourse is predicated on the assumption that the Democrats will win the presidency and Senate. If this happens, the massive unpopularity of Mitch McConnell’s push to rapidly fill the open Supreme Court seat will likely have been a factor, meaning that the plan put forward by Epps and Sitaraman might find ground with republicans in swing states who do not wish for court battles to continually jeopardize their re-election campaigns.
A court of this nature will be better positioned to protect human rights as well. Since unanimous consent on the panel of independent jurists must be reached to hear cases, the side with the most ideological resolve will have an advantage. For example, take the contentious issue of reproductive rights. A small group of conservative justices have flinched on the most pressing issues, such as Kavanaugh essentially concurring with lower court rulings that prevented Louisiana and Kansas from defunding Planned Parenthood. Contrast this to the steadfast belief of Breyer, Kagan and Sotomayor that the Constitution guarantees a woman’s right to choose. Because conservatives have budged on abortion rights and liberals have not, it’s more than likely that this board of independents would consist of only pro-choice jurists. Conservative jurists have also budged on LGBTQ+ rights as well as the rights of indigenous people, so it’s similarly likely that the selected independent jurists will hold views in the affirmative regarding those subjects. Conversely, some liberal jurists have been willing to join the conservatives on environmental issues, with Breyer and the late Ginsburg allowing a pipeline to cut under the Appalachian Trail. Perhaps some of the independents will hold environmental regulations in lower regard than many would hope for.
Detractors of this plan will cite the fact that rulings like Citizens United, that allowed dark money to flow through our democracy, were authored in courts with a similar number of liberals and conservatives. This is true; the Epps/Sitaraman plan does not fully guard against rulings like the aforementioned. But there is a stability within this proposed court that cannot be found if Democrats are to pack the courts.
This plan, once and for all, can negate the perception of an apolitical High Court that sits above the political struggles of the era. A court that rules on fundamentally political issues, like rights for minorities and programs that give people healthcare, cannot be apolitical and it is foolish to pretend otherwise. The Epps/Sitaraman plan affirms the political nature of the Court, thereby opening the door to further reforms that could democratize the court. It affirms the political nature of jurists — explicitly classifying some as conservative and liberal — and assigns the term independent to those who sit outside that division.
This alternative plan would shift the balance of power in the Supreme Court while protecting liberties in a lasting way. Court packing, on the other hand, would leave the rights of many communities in a perpetual storm of cloudy transience. There is another way to reform the highest court in the land, that better protects the future of our republic. The Democrats should seek to enact it.
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Email Kevin Kurian at [email protected]