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Court Reform that Works

Photo Credit: Joe Ravi, CC-BY-SA 3.0


Late last Monday night, I’m guessing on Charles Koch’s yacht, a bunch of Federalist Society ghouls probably took some time to throw back some champagne and pick their teeth with the bones of the poor people they had for their celebration dinner. Of course, they were celebrating the heist of the century after the senate confirmed Amy Coney Barrett to replace the late Ruth Bader Ginsburg. Last month, I wrote that this conclusion was all but inevitable, and I think everyone pretty much knew that to be true. Nancy Pelosi said that congressional democrats would “use every arrow in their quiver” to block the nomination. Unfortunately, it turns out they’ve been getting all their archery equipment at Zeno’s Pawn Shop, and now a whole host of hard-won civil rights victories are at risk. Justices Thomas and Alito recently signaled they would like to overturn Obergefell v. Hodges; Brett Kavanaugh wrote a poorly researched concurrence that is already threatening voting rights during the week before a historically important election. For her part, Coney Barrett has cast doubt on Roe v. Wade and said that she does not believe that Title IX protects transgender people, misgendering them in her remarks as a little bonus spite.

All of this sucks. A conservative majority is Buffalo Bill, skinning each of our fundamental rights and stitching together a fucked up imitation of the blessings of liberty and prosperity our founders promised us. So who will be our Clarice? It turns out it could be Ro Khanna, Joe Kennedy III, and Don Beyer. The three democratic representatives (of CA, MA, and VA, respectively) introduced the Supreme Court Term Limits and Regular Appointments Act of 2020, or HR 8424, last month. Legal scholars around the country have endorsed the bill, but Joe Biden recently said he wasn’t open to the idea of term limits. We can toss that on the pile of bad positions that we will have to push his administration to reconsider once we put him in the White House.

The bill does some interesting things, and while it isn’t a perfect solution, it is a workable one. The headline grabber is that it would limit Justices to a term of 18 years. These new rules would not apply to any member currently on the court, which isn’t great, but there’s a mitigating provision that should help balance the court in the near term. Under HR 8424, the President would be allowed to nominate a Justice in the first and third year of a term, potentially giving any administration four nominations. Once a new Justice is confirmed, the most senior Justice would move to an auxiliary role (they could continue to serve on a lower court if they chose), in which they would rejoin the bench temporarily if an active Justice were incapacitated or removed.

HR 8424 also caps the number of justices at nine. However, because none of the provisions apply to current Justices, they would exist outside of those limitations. The next President, however, would start the new process by nominating Justices. As the current roster leaves the Court, the number will get back to nine. So for the people afraid of “court-packing,” know that it would only be a temporary arrangement.

It might take a while to get a truly balanced Court under this system. Clarence Thomas is 72, Samuel Alito is 70, and John Roberts is 65. However, Neil Gorsuch is only 53, Kavanaugh is 55, and Amy Coney Barrett is only 48. Meanwhile, Stephen Breyer is 82, and Justices Kagan and Sotomayor are both in their 60s. There is also no guarantee that this bill passes at all, let alone during the first year of Biden’s presidency- and who knows if a provision would make it into the bill that would serve as an IOU for that first year nomination. It will be a slow process.

All of that being said, HR 8424 is the only genuinely feasible solution I have seen put forth. Advocates of just packing the court can’t get around the argument that nothing would stop Republicans from doing the same thing later and finding a way to make it worse for everyone. Pete Buttigieg’s campaign suggestion of a 15-member Court with a 5/5 split between the two Democrats and Republicans with the remaining five selected by those ten Justices is intriguing but probably doesn’t pass constitutional muster because it circumvents the role of the President and Senate in appointing those five justices. Law professors Dan Epps and Ganesh Sitaraman, the same two who wrote the paper that inspired Mayor Pete’s plan, also suggested doing away entirely with a permanent panel of Justices and instead selecting nine Justices at random from the roster of Federal judges from the lower courts for each SCOTUS case. That is, to be fair, basically how federal appeals courts work now. However, given that Mitch McConnell and the Federalist Society have been wreaking absolute havoc on the judiciary branch at every level for years now, the odds are pretty good that we would end up with a profoundly conservative court more often than not.

I know a lot is going on, and we’re all getting bombarded by text messages and phone calls from various campaigns and action committees. As I write this, there are less than three days before the polls officially close, but I make no apology for adding a whole other thing to your political to-do list. (Oh, hey, by the way, if you haven’t already voted, what in the hell are you waiting for? At this point, it’s probably also too late to get a ballot in the mail, so go to a dropbox or your polling place. Here are some resources to help make sure you know your rights and know who to call if you need legal support!) Here is your political action schedule for the next couple of days, ok?

  1. Vote if you haven’t already.

  2. Go here and find ways that you can text bank or phone bank until the polls are closed.

  3. If the good guys win, take a breather. Have a drink, and watch something funny. Bask in it for like 24 hours. If the bad guys win, don’t let the dread take hold! Get some sleep and get back to work the next day!

  4. Go here and engage in a relentless pressure campaign to let your elected representatives know that we will not stand for a regressive ideology held by a minority of people in this country to strip the fundamental rights away from marginalized people.

  5. Repeat step four until we fix the damn courts.


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