The four years of Trump’s presidency were marked with incredible amounts of scandals, mishandlings, complete disregard for democracy, the platforming of right-wing extremism, and even an insurrection on the United States Capitol, just to name a few milestones. While all of these things had, and continue to have, deep effects on politics and society as a whole, there is one thing from the Trump administration that could slow and even derail progressive policies and platforms for generations to come: the federal courts.
Trump and his administration appointed 245 federal judges during his four years in office, which is only second in a single term to Jimmy Carter, who appointed 262. A lot of this work was handily done by former Senate Majority leader Mitch McConnell, who was often praised by the GOP for his quick and dedicated work to appoint conservative justices to the federal districts and the Supreme Court.
Ironically, McConnell blocked the appointment of Merrick Garland during the final year of Obama’s presidency after the death of Supreme Court Justice Antonin Scalia, arguing that because it was an election year, the next president should appoint the seat. Scalia passed away in February of the election year, which would've given the Senate plenty of time to confirm a new justice. However, there was not even as much as a hearing for the potential nomination of Garland during 2016. When Justice Ruth Bader Ginsburg passed away in September of an election year at the end of Trump’s presidency, McConnell decisively and quickly pushed through the confirmation of Amy Coney Barrett, Trump's nominee. She was confirmed in 27 days, which is roughly a third of the time it usually takes a Supreme Court justice to be nominated.
The nature of Barrett’s confirmation is a prime example of McConnell’s work in judicial appointments. He outwardly recognized and took advantage of the power he held as the Senate Majority leader. While some politicians try to create a facade that they “reach across the aisle” or believe in bipartisanship in order to get things done, McConnell used his power to its fullest extent to get conservative justices on federal benches where they will be serving for 30+ years. Federal district courts have an extremely large amount of power in deciding the use and validity of laws in this country, and he knew that appointing strong, young conservative justices on the courts would be more effective than any piece of legislation that the GOP can muster through Congress.
I truly believe that McConnell recognizes that conservatism as a whole is becoming increasingly unpopular across the country. Recent polling asking questions about specific policies rather than party alignment shows that leftist, progressive policies are more supported and favorable amongst the general population. This should not be surprising to anyone who understands the struggles of the United States working class over the course of history, recently exacerbated further by the COVID-19 pandemic. Amazon workers were forced to work on Labor Day without any increased benefits or perks, but it’s so cool that Jeff Bezos was able to go to space, right?
Side note: Bezos spent $5.5 billion for a four minute flight, where he technically did not even reach the boundary of space. I would like to think there are a couple things that money could have been spent on to better society. I digress.
At the point where the GOP relies upon gerrymandering, voter suppression, and an undemocratic Senate to keep conservative politicians and policies in place, I think it is clear to see that even they know their platforms and ideologies are unpopular. Conservatism, and the GOP, is actively and undeniably undemocratic both in theory and reality. (This is an argument for another time, but I believe it is central to understanding the federal courts and the argument for Supreme Court expansion.)
However, even with the amount of success that the GOP has had with these tactics, there is one institution that can keep conservatism alive better than anything else. This, of course, is the federal court system.
Earlier this year, when President Joe Biden announced that he was to create a commission to study the possibilities of expanding the Court, create term limits, and just the overall efficacy of the Supreme Court, conservatives cried out that Biden wanted to “court pack.” Biden has not given a definitive opinion on the issue, but due to his unwavering commitment to the status quo, it is safe to assume that he does not plan to add justices to the Supreme Court.
It is ironic for the conservative response to be alarmed by the possibility of court-packing—in reality, the real court-packing was when the Trump administration pushed through 245 federal circuit judges and 3 Supreme Court justices in less than 4 years. A variety of independent, nonpartisan legal organizations claimed that a considerable number of these judges were too inexperienced and partisan for the country’s federal judicial system.
The federal courts have never historically been that representative of the general U.S. population, but Trump’s appointments made the demographics much worse. 203 of the 245 judges are white, meaning roughly 17% of Trump’s appointments were people of color. With the new census data showing that people of color make up 40% of the country, having this large of a disparity among the federal courts is very troubling for the future of the country and the judicial precedents that will be set. For the sake of racial justice and equality, the Court should be expanded.
Another reason to expand the court is that the architects of the 1869 Congressional Act, which argued to increase the Supreme Court to nine justices, wanted the court to continue expanding over time to reflect the increasing size and complexity of the United States. Today, we have a population ten times larger than we did in 1869, along with technological, medicinal, and general societal advancements that have progressed us into the most advanced country that the world has ever seen. They recognized the importance of having the highest court in the land be well-equipped to properly adjudicate the laws of a country with the status and diversity as the United States.
Some argue that we should add 4 justices to match the 13 federal circuit courts, which would give Biden and the Democrats the chance to retake the majority on the Court. While this makes sense—you could potentially even stagger their arrival to the bench over the remainder of his term—I think that this number can, and should, be even higher. While the specific number of justices on the Court is not something I am particularly well-suited to argue about, the general expansion of the Supreme Court by no less than 4 justices is something I support and believe to be vital for the sake of the United States.
Stephen Breyer, aged 83, is 16 years older than the next oldest living liberal on the bench. History tends to repeat itself; with the Senate balance potentially shifting again next year, we might see a repeat of what happened with Ginsburg.
I was of the camp that Ginsburg should have retired during the Obama presidency in her early 80s. This would have given the liberals a chance to replace her with a young, passionate progressive to continue her legacy and ensure that a Republican victory for the presidency wouldn’t be able to pick the successor to her seat. As we all know very well, Amy Coney Barrett replaced Ginsburg in what is arguably one of the most drastic ideological shifts in a Supreme Court replacement ever. Barrett has closed – and will continue to close – many doors RBG opened during her time on the bench.
Breyer needs to realize what is at stake in this situation. His arrogance and inaction could lead to a 7-2 conservative majority on the bench. A 6-3 conservative majority feels absolutely helpless in all major Court decisions of the past year, but a 7-2 majority would absolutely destroy any sliver of hope that remains.
It is time to retire, Justice Stephen Breyer.
(I say this as I am wearing a t-shirt with that exact sentence printed across my chest and just having watched his book tour interview on Fox News with Chris Wallace and being reminded of the absolute joke that is the American political community.)
Outside of adding justices to the court, which only needs approval of a majority of Congress to pass, another change to the current system that has been suggested is adding term limits. This would require a change to the Constitution and approval from most states. I believe there was a very clear and intentional reason as to why the Framers of the Constitution gave term limits to literally every other major governmental position and not justices. I also believe there was a specific reason as to why they also did not include a set number of justices. They knew that the Court would need to change over time, to reflect the legal needs of the country and its citizens.
Some argue that we can’t expand the Supreme Court because it would negate the Court’s legitimacy, turning it into yet another partisan institution when it is to be considered the one nonpartisan governmental institution to settle debates and interpret the laws. My one question to that argument is, “What Supreme Court have you been dreaming of that is like this?”
The Court has been and will continue to be partisan. It is naïve to think it is not, and also distracts us from recognizing the inherent brokenness of our judicial system. In a system that incarcerates people of color at far higher rates and disproportionate levels relative to white people, there is no apolitical nature to be found. The laws, and courtrooms, have been used to unfairly prosecute and sentence the poor and people of color since the founding of this country.
The recent majority opinion striking down the eviction moratorium set by the CDC argued that allowing this extension to stay in place could lead to the introduction of many more beneficial programs during a pandemic and for low-income families. My God. The horror of good things happening in this country to poor people caused the gutting of a program put in place to aid those who suffered the most during the pandemic.
The Supreme Court is able to sit idle with the abortion ban in Texas, as it strips the rights and freedoms of women and their personal health choices. However, they are quick to take decisive action allowing states to enact voter suppression laws, keep dark and private money in politics, and destroy the rights of labor unions and workers.
The Court rules in partisan manners, both liberally and conservatively. It is disingenuous to argue that it is a nonpartisan institution that interprets the law.
We have a broken judicial system that can be saved by expansion. A larger Supreme Court would allow it to be more representative of the country: a more diverse body, the ability to handle more work, fewer narrow and arbitrary splits in cases, and the capacity to remain stable at the vacancy of one seat. Naturally, this would give way to the formation of smaller coalitions and create interesting and influential dynamics. This, of course, forces us all to recognize the political nature of the court, allowing us to make the court a substantially more just and equitable institution.
So, let’s expand the Court!