BY Michael Ge
As America’s institutions are under attack, the Supreme Court faces a crisis. The Supreme Court’s very legitimacy and respect are threatened. The Supreme Court’s popularity is at an all time low1. The confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett resulted in a drastic change in the Supreme Court’s ideological makeup from a 5-4 conservative majority to a 6-3 conservative majority. While on paper this may not seem like a drastic change, the departure of moderate conservative Anthony Kennedy and his being replaced by the much more conservative Brett Kavanaugh is indeed a major shift. Furthermore, confirming Gorsuch and Barrett to prevent a Democratic president from rightfully having a justice confirmed is daylight robbery. The Supreme Court cannot defend itself from these egregious actions. There is no doubt that the Supreme Court must be reformed or face loss of all credibility. The ideological composition of the Court is no longer in line with that of the United States which is roughly evenly split between liberals and conservatives.
Presently, the majority of the justices on the Supreme Court espouse the reactionary judicial philosophy of originalism. Originialism views the Constitution as an unchanging document, the same document from 1787. The Constitution embodies our country and it changes just as we do. The ideals of freedom and liberty endure, but the threats to it have changed. Interpreting it as written is inflexible and illogical. The issues we face in the 21st century are not the same as the Founding Fathers faced in the 18th century. Great Britain is no longer our adversary but our friend, we no longer wear powdered wigs but in its place exists new hairstyles, we no longer travel on horses but instead we ride on cars and buses. Even the Supreme Court has changed, where it once had six justices, it now has nine.
Expanding the size of the Supreme Court represents the right way to fix the Supreme Court. The seats on the Supreme Court should be expanded to match the number of circuit courts – 13 in total. This way, the judicial system would be proportional to the lower courts, and by tying the number of Supreme Court the number of circuit courts, the Supreme Court cannot be expanded simply at whim without facing major disruptions to the judicial system. If this were to happen under President Biden, the Court would shift from a 6-3 conservative majority to a 7-6 liberal majority – the first liberal dominated Supreme Court in decades. This Supreme Court would not hesitate one moment to defend voting rights, reproductive rights, workers’ rights, and so much more. This Supreme Court would never hesitate to use its powers to defend the Constitution. This Supreme Court would serve as a strong but fair check on the other branches of government, and serve as a co-equal branch of government.
Some may argue that expanding the court would be a blatant power grab, but that power grab they speak of has already been done by the previous administration and congressional Republicans. Republicans created a precedent in 2016 that stated no person would be confirmed to the Supreme Court in a presidential election year to prevent the confirmation of Merrick Garland, a universally respected judge, simply because President Obama had nominated him. Then in 2020 after the death of Justice Ruth Bader Ginsburg less than two months before the election, the very precedent the Republicans created was conveniently forgotten to ram through the nomination Amy Coney Barrett. On the contrary, expanding the Supreme Court would be setting things right. It would be justice.
Expanding the Court would be the remedy for a Court that has suffered greatly in the last four years and restore its legitimacy and respect in the eyes of the American people. Only with this reform can the Supreme Court return to its rightful place as a co-equal and vital branch of government. Then and only then will this crisis be lifted and will we begin on the long road to recovery and reconciliation.