Washington Merry-Go-Round

IMMEDIATE RELEASE July 7, 2023
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
What to do with a Court gone rogue
By Douglas Cohn and Eleanor Clift         
 
          WASHINGTON — Many Americans are just now waking up to the fact that we have an ideologically conservative Supreme Court with a super majority of 6 to 3 that is out of synch with most Americans, including many conservatives. It is a Court gone rogue through an ideological and political imbalance that is likely to be with us for at least a decade, even longer given the relative youth of the three Trump-appointed judges.
          Even if the longest serving, ethically challenged, and oldest justice, Clarence Thomas, were to step down, and there is no indication he plans to do so, the conservatives would still be five members strong on a nine-person Court.
           “Not a normal Court,” is how President Biden responded when a reporter asked him about recent Supreme Court rulings that overturned Roe v. Wade and upheld a web designer’s request to refuse serving a gay couple even though she had never been asked to do so, and the gay person named in her suit wasn’t even gay.
          These rulings like overturning Roe, a 50-year precedent guaranteeing a woman’s right to choose, beg the question: what can be done to change a Court compromised by ethics violations and answerable to no one as it chips away at the country’s bedrock values? What can be done to bring it more into line with constitutionally aligned public opinion on the relevant issues of today such as gun control, voting rights, campaign finance reform, and women’s rights?
          What are our options?
          First, we can wait it out and let the actuarial tables and retirements wend their way, bearing in mind it would take two justices among the six conservatives to vacate the Court, a Democrat in the White House, and Democratic control of the Senate to capitalize on those vacancies – a very tall, very unlikely order.
          Second, some Democrats have floated the idea of impeaching conservative justices for ethics violations and/or lying during the confirmation process when they said they would uphold established law, like Roe. Chance for a two-thirds Senate vote to remove a justice impeached by the House of Representatives?  Zero.
          Third, expand the Court. The number of justices has gone up and down six times over the years, so this would not be revolutionary. The Judiciary Act of 1789 created a six-member Court that had grown to nine justices by 1837, was reduced to seven in 1866, and raised back to nine in 1869. Then in 1937 FDR tried to add a new judge for every sitting justice over 70 years of age  after conservative justices kept striking down aspects of his New Deal. It sounded like a reasonable idea, but the public thought naught, labeling it Court packing. So, change is possible, if improbable, especially since neither President Biden and a number of Democrats are on board, and most Republicans are opposed. It will not happen.
          Fourth, wake up a sleep-walking public to create momentum for change. “Middle out and bottom up,” is how Biden characterizes his economic policy. No more trickle down. The same dynamic applies to the Court. Once people awaken to the challenge, the force of public opinion can change unpopular policies by voting out politicians who advance such policies. This would be the legislative solution, which even a rogue Supreme Court must acknowledge or face a battle between the branches.
          Therefore, of the four available options in a democracy, only the one relying on an energized electorate has a chance of success – either that or we hold our collective breath for the next 10 or so years.
 
          Eleanor Clift’s latest book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
          Twitter:  @douglas_cohn
          © 2023 U.S. News Syndicate, Inc.
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END WASHINGTON MERRY-GO-ROUND