The Court is unpopular — and rabidly partisan.
“Everyone is free to express disagreement with [the court’s] decisions,” Supreme Court Justice Samuel Alito told the Wall Street Journal on September 27, when asked whether the public was losing faith in the court. “But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
Alito is right. It does cross an important line — and Democrats should cross that line. They should leap over that line. They should trample that line, and then trample the protestations of the conservative justices who blithely stripped bodily autonomy from half of humanity in the Dobbs decision in June. The Democrats should question Supreme Court legitimacy and integrity morning, noon, and night. And then they should force the illegitimate conservative majority to conform to democratic norms and ideals again.
The conservative Supreme Court majority has long embraced hackish partisanship and a flagrant disregard of ethics: In 2000, the conservative majority handed a close presidential election to George W. Bush on naked partisan grounds, just because they could. Senate Majority Leader Mitch McConnell refused to give Barack Obama’s nominee to the court a hearing for almost a year, again just because he could. Two members of the current court, Clarence Thomas and Bret Kavanaugh, have been credibly accused of sexual harassment and assault, which should have disqualified them from the bench.
But since the appointment of Amy Coney Barrett gave the Court a 6-3 majority at the end of Trump’s term, things have gotten even worse. In Kennedy v. Bremerton School District, Justice Neil Gorsuch lied about the facts of the case in his majority opinion in order to boost the religious right and support school prayer. In Dobbs, Sam Alito cited 17th and 18th century case law and garbled science to end abortion rights in a gleefully hectoring decision which also threatened marriage equality and contraception rights.
As if that weren’t enough, Justice Clarence Thomas has been embroiled in an ongoing and horrifying ethical scandal. His wife, Ginni Thomas, personally lobbied federal and state officials to illegally overturn the 2020 election results and install Donald Trump as president in violation of the Constitution. Yet when the Supreme Court had to rule on whether the White House should turn over records related to election obstruction and the January 6 coup, Thomas did not recuse himself. In fact, he was the only Justice to vote against turning the records over. Which raises the question, did he fear the records would show his wife’s involvement in an actual insurrection?
Grotesque ethical quagmires and naked partisan attacks on women’s rights have, deservedly, caused the court’s popularity to crater. According to Gallup, approval was already a low 49% before the Dobbs ruling. Afterwards, it fell to 40%, with 58% disapproval. Those are the worst Gallup numbers in 50 years.
The Supreme Court is so out of step with the public because our unbalanced and undemocratic institutions give huge advantages in the Senate and electoral college to conservatives, who are disproportionately powerful in large, empty, overwhelmingly white states. Republicans have only won the popular vote for President once in the last 30 years, but have managed to gain a Supreme Court supermajority. That’s not any kind of democracy.
Alito and Chief Justice John Roberts, nervously eyeing a public that justifiably despises them, have scolded that public for not simply acquiescing to their wisdom. “You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is,” Roberts insisted. (Even though it is literally Congress’ job to pass laws and tell you what they are.)
Democrats shouldn’t be hesitant. The Court is unpopular. It is rabidly partisan. It has gutted voting rights, and has even contemplated ending democracy and allowing conservative state legislatures to choose electors regardless of the popular vote. It is a frightening, ugly, illegitimate institution, intent on imposing its tyrannical will on the public.
We shouldn’t let it do that. The Supreme Court was never meant to hold absolute power. Congress and the President have the power to restrain it, if they want to.
The easiest path forward here is simply to appoint more justices. A lot more justices. Democrats should promise to add 10, or 15, or 20 more judges. Add so many judges that Roberts and Alito stop whining in their irrelevant dissents and just give up and retire in despair.
Rebalancing the court to reflect the actual will of the voters over the last decades won’t be easy: Democrats would need to hold the House and Senate, override the filibuster, and convince timid Joe Biden to take a stand. But if we don’t set the goal, we can never reach it.
The Supreme Court’s conservative majority is an irresponsible, power-mad conglomerate of robed tyrants who have set out to strip the public of voting rights and bodily autonomy and to establish a vicious theocracy. Tyranny and theocracy are the enemy — the least Democrats can do is acknowledge how dangerous that enemy is, and promise to fight back.
Noah Berlatsky is a freelance writer in Chicago who writes on culture and politics. He tweets too much at @nberlat.