Trump’s nomination of Judge Amy Barrett to the Supreme Court ignites anew the battle over how the court should be ideologically composed. Judge Barrett, currently on the 7th U.S. Circuit Court of Appeals, has a very conservative, originalist track record and professes a judicial approach like that of her mentor Justice Antonin Scalia, for whom she clerked.
A 6-3 conservative majority on SCOTUS would certainly bend that court’s decisions to the right for a long time, despite claims from that majority that they are just applying judicial principles of the founders’ Constitution — to the U.S. of over two centuries and many changes later.
The liberal-Democratic response, though well grounded, seems from this corner to overlook some important aspects of what the high court has evolved to address.
Outraged Democrats and many independents are dismayed by the historical accident that has given a potentially one-term president so many opportunities to distort the court’s ideal conformation as a neutral arbiter, the “umpire calling balls and strikes” of Chief Justice John Roberts’ delusional fantasy. But such are the accidents of history, and if Trump gets his third nominee confirmed, “warp speed” will be applied by future historians less to his still-unattained safe and effective COVID-19 vaccine than to the final SCOTUS justice he leaves in place, still faintly smoking from the detour through Mitch McConnell’s hellscape of irregular order that it took to get her there.
The ideological majority in the nation — liberals, socialists, assorted leftists and pro-democracy centrists — is incensed by this opportunity for an accidental majority on the court of members representing what is essentially a fading minority, White cultural hegemony.
Many of their outraged proposals in response are well conceived and would serve any future SCOTUS — expanding the court and applying term limits to replace lifetime appointments. GOP duplicity and hypocrisy might also move Democrats, seeking to balance the two Senate seats each from near-empty Western states, to recognize the justice of D.C. statehood as well as the aspirations of Puerto Ricans, who have a statehood straw poll on their presidential ballot in November. Not the most honorable reason to seek D.C. statehood but we’ll take it.
Having, say, 15 Justices instead of nine would make each individual appointment less high-stakes and also provide the kind of workforce that could speed up the 19th-century pace of the court as it copes with the output of increasingly busy, increasingly numerous appellate courts that themselves number up in double digits (Judge Amy is from the 7th) and have been stocked with more and more assigned judges as the workload increased. Those appellate courts were created to lighten the load on SCOTUS and now are increasingly responsible for the load.
A bigger court with more clerks and more permanent research staff could move faster and create ad hoc subgroups to tackle different classes of cases. That result would be worth the scuffle that it would take to pack the court.
But the other source of the load — interpreting the law as made by legislators, both at the state and federal level — could also be cleaned up if Congress would return to legislating — instead of its current focus on funding the government and engaging in theatrics around appointments — and further, to pass laws that are not infused with the kind of garbage that inevitably brings them to the attention of the judicial system because of their sloppy origins.
There is no doubt that some laws that emerge from Congress in the recent past represent a consensus of no consensus, a bipartisan willingness to turn the final decision over to the courts. That habit, which dates to the era of Dan Rostenkowski, Tip O’Neill and Everett McK Dirksen, is riskier than ever in this more hyperpartisan age and at the mercy of the probably hyperpartisan court that could emerge from the inclusion of a Justice Barrett. Democrats, especially if they gain a two-chamber majority, would do well to concentrate on writing crisp law that won’t be as easy to challenge as Congress’ typical product in the past.
Almost without saying, members of both chambers who arrive as a result of left-socialist electoral activism might be more inclined to legislate for popular benefits and undo laws that abet the shackling of our daily lives by capitalist practices. A farewell to showboat laws of dubious constitutionality but providing helpings of red meat to the right-wing base is a pleasant prospect.
And many laws that had crisp beginnings have been made soggy by a process that gave unwonted power to conference committees that knocked the corners off laws that emerged differently from the two chambers. Legislation to rein in that process would also keep more laws out of the courts.
And Congress, as part of the emerging package to trim the powers of future presidents (a package for which the excesses of Donald Trump provide a road map), should include a legislative affirmation that a president’s “signing statements” when signing off on legislation should be seen as nothing more than personal opinion. Any president could be sued privately or by Congress for a pattern of refusal to faithfully execute any law she or he signed.
Sloppy drafting of legislation has given the judicial system many an opportunity to distort otherwise well-designed law. A lot of the burden (as well as quite a bit of mischievous or malicious pleasure for some Justices) would be taken off the court by non-fuzzy legislative language. Although the proportion of chuckleheads in state legislatures makes even the U.S. House GOP caucus look like geniuses, the example of better law-writing on the Hill might trickle down to state houses as well — enforced by the left’s increasing awareness that those state legislative seats are among the easiest pickings.
So, a bigger SCOTUS, yes, and not just because it might give the Democrats a chance to level the field. But better drafting of U.S. law (by, increasingly, our successful candidates) might be another factor that would save us from the kind of risky, hyper-litigious society we have become. Socialists and leftists should seize this wider impulse, fueled by Democratic animus at McConnell and his gangster caucus, to bring better courts and better legislation to the table at the same time, like a well-scheduled meal.