By Jessie Seigel / Washington, D.C.
Just four days before the Supreme Court’s current term began on October 4, Justice Samuel Alito went on the attack. During a speech at Notre Dame University, he decried the media for generating the view that “a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view.” He added, “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”
Alito expressed special resentment of the media using the term “shadow docket” to refer to orders issued by the Court without hearing argument or explaining its reasoning. He argued that the correct term would be “emergency docket,” and that rulings on emergency applications without full court opinions are not new.
But if Alito doesn’t want the public to perceive the court as a partisan cabal issuing secretive decisions in the middle of the night, then he and the rest of the majority on the Court should not, in cowardly fashion, have issued an anonymous, unsigned order at midnight on September 1, leaving in place a new Texas law banning almost all abortions–although women have an established constitutional right to abortion–with no discussion of the majority’s reasoning. No portrayal by the media could do more damage to the Court’s reputation as an independent institution than this right-wing partisan majority has already done to itself.
As for the term “shadow docket,” that did not originate with the media but is the term Justice Elena Kagan used in her dissent. (The apt term was originally coined by University of Chicago Law professor William Baude in 2015.) Pointing out that the majority’s unsigned order was issued “without full briefing or argument, and after less than 72 hours’ thought,” Kagan wrote that the order “illustrates just how far the court’s ‘shadow docket’ decisions may depart from the usual principles of the appellate process.” Mincing no words, Kagan added that the majority decision was: “emblematic of too much of the Court’s shadow-docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend.”
On September 13, prior to Alito’s attack on the media, Justice Amy Coney Barrett tried to defend the Court’s alleged independence, stating, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
But tellingly, Barrett made this statement at the University of Louisville’s McConnell Center, after an introduction by Senator Mitch McConnell, the man who both helped found the Center and infamously rushed Barrett’s confirmation through the Senate a mere eight days before the 2020 election. That, of course, was despite the fact McConnell refused to permit even consideration of Merrick Garland, nominated by President Obama in March 2016, on the grounds it was an election year. It’s hard to decide whether Barrett’s declaration—as well as where and in whose company she chose to make it—is laughable, insulting to our intelligence, or both.
On September 16, another member of that partisan majority, Justice Clarence Thomas, also speaking at Notre Dame University, claimed the justices do not make their rulings based on personal preferences. However, as is often the case, Thomas’ actions belie his words. According to the Atlantic, in January 2008, Thomas and the late Justice Antonin Scalia attended a political retreat run by the Koch brothers. The two justices’ votes in the subsequent ruling in the Citizens United campaign finance case reportedly benefited the Koch brothers’ political activities. Furthermore, Thomas refused to recuse himself from any ruling on the Affordable Care Act despite the fact his wife is a conservative lobbyist actively working to repeal that act. These actions constitute conflicts of interest that have brought the Court’s claim to impartiality into disrepute even before the latest, flagrant displays of partisanship.
Why are Alito, Barrett, and Thomas suddenly making these defensive public statements?
Is it because the Court’s approval rating in a September Gallup Poll dropped to a shameful 40 percent?
Or is it because in this term, the Court will render decisions on the extremely controversial issues of whether abortion, handgun restrictions, and restrictions on using taxpayer dollars for religious schools will remain constitutional? Do they fear—as NPR has put it—that their “chipping away, hacking away, or outright overruling nearly 50 years’ worth of abortion decisions…or expanding…those protecting gun rights and religious rights” will be seen for what they are—the partisan work of political hacks?
Or perhaps these justices fear that more justices will be added to the Supreme Court in order to counter their right-wing partisan agenda?
The Constitution sets no specific number of Supreme Court justices, and the number has varied over the course of our history. A current proposal to expand the size of the Court has been under consideration by a presidential commission since last April. That commission may also be considering a number of other proposals such as limiting the court’s ability to strike down acts of Congress and its ability to resolve important matters without first hearing arguments and full briefings.
What are the proposal’s chances? Historically, the most similar situation occurred during Franklin Delano Roosevelt’s administration.
FDR’s So-Called Court-Packing Proposal:
President Roosevelt was elected in 1932, in the midst of the Great Depression, and immediately was faced with the worst economic crisis in our history. His administration developed a number of programs entitled his New Deal to alleviate the country’s economic hardship.
But beginning in 1935, the Supreme Court began striking down a number of these laws on the grounds that the legislative branch was illegitimately giving away some of its powers to the executive branch.
Roosevelt’s view was that the Court’s majority was favoring property over people. His Secretary of the Interior, Harold Ickes, echoed this sentiment: “The present majority of the Supreme Court have ‘tortured’ the Constitution, reading into it their own personal predilections. Such a condition of affairs is intolerable in a democracy.”
Roosevelt was not able to appoint even one justice during his first four years in office. But relying on perceived public backing based on his landslide reelection victory in 1936, FDR proposed a judiciary reform bill that would allow the president to appoint an additional justice for every sitting justice who turned 70 and declined to retire (retirement remained voluntary). Up to six such new justices could be appointed to the Supreme Court for a possible total of 15, if no one retired or died. Since there were two liberals on the Court, this would ensure Roosevelt a liberal majority.
It’s not clear whether this legislation would have passed in Congress since at that time—as opposed to now—the Supreme Court as an institution was held in high esteem. Some Democrats in Roosevelt’s party opposed the change, concerned that the Republicans would just add to the Court’s membership to advance their agenda when they regained power, thus utterly eviscerating the Court’s independence as a separate branch of government. The Senate Judiciary Committee gave a negative recommendation to the full Senate.
Nevertheless, Roosevelt’s threat to pack the Court apparently had an effect. Before the bill came to a vote in Congress, two Supreme Court justices changed to pro-New Deal positions, upholding as constitutional the National Labor Relations Act and the Social Security Act (dubbed “the switch in time that saved nine”), making the court-packing legislation unnecessary. And Roosevelt ultimately appointed eight of nine justices over the course of his 12 years in office.
Should We Expand the Court?
Like FDR, President Biden has been faced with numerous crises upon taking office. And like FDR, he has advanced a large, far-reaching program, the Build Back Better plan, to relieve the U.S.’ various hardships and to aid the country in moving forward.
But unlike FDR, Biden must deal with razor thin majorities in Congress, and a Senate minority determined to obstruct without compromise any legislation the Democrats advance, in addition to an activist right wing Supreme Court. As a practical matter, Biden currently does not have the votes to pass legislation permitting him to add justices. Senator Joe Manchin, the Republican wolf in Democratic clothing, surely will not permit any change in the filibuster rule that would stop Mitch McConnell and the Republican minority from blocking any legislation that increased the size of the Supreme Court, let alone vote for it himself.
But if, at some point, Biden can get such legislation passed—should he?
If these were ordinary times—before the Republican Party was engaged in open, nonstop efforts to overthrow a legitimate election, or when we could be assured the conservative majority on the Supreme Court was not aligned with that goal—one might reasonably suggest that we must consider the long-term effect on the Court’s status as an independent branch of the government. But these are not ordinary times.
Those who complain that adding justices would politicize the court ignore the fact that McConnell’s holding up Merrick Garland’s nomination until a Republican president could pack the Court with three right-wing political partisans has already politicized the Court.
Under these circumstances, if given the chance to change the composition of the Court, we cannot afford to ignore the ongoing attack on democracy that is in front of us here and now because we fear what the Republican response will be when they are in power. Such an approach is a recipe for putting them in power and in position to solidify a dictatorship. Democracy has its back up against the wall, and though a concerned citizen ordinarily might not favor court-packing, there doesn’t seem to be another solution in sight.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.