William Brennan, the gargantuan US supreme courtroom justice, loved to greet his incoming law clerks with a bracingly easy definition of constitutional doctrine: 5 votes. “You might maybe perchance additionally’t conclude anything round here,” Brennan would affirm, wiggling the fingers of his hand, “without 5 votes.”
Underscoring the truth of Brennan’s hardboiled definition turned into the courtroom’s 5-4 ruling this week (with Chief Justice John Roberts in dissent alongside his three liberal colleagues) to let stand a Texas law that turns frequent voters into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion on a girl past her sixth week of pregnancy. Appropriate, the single-paragraph unsigned majority concept emphasized that in letting the Texas law remove kind the courtroom turned into no longer ruling on the statute’s last constitutionality.
And yet. As Justice Sonia Sotomayor wrote in a passionate dissent, “Equipped with an application to enjoin a flagrantly unconstitutional law … a majority of justices absorb opted to bury their heads in the sand.” President Biden powerfully joined these serious of the courtroom’s resolution. Declaring that the ruling promises to “unleash [..] unconstitutional chaos”, Biden promised to work to give protection to the constitutional moral to abortion first identified in Roe v Wade.
How might maybe additionally the president conclude so? Wait on in April, Biden empaneled a bipartisan commission of students, legal professionals and jurists tasked with exploring the grief of “courtroom packing”. The commission is scheduled to submit its document later this autumn, which returns us to Justice Brennan’s 5 wiggling fingers.
There is nothing magical about the number nine, the fresh measurement of the supreme courtroom. The constitution supplies that there shall be “one supreme Courtroom”, but says nothing about the courtroom’s measurement or composition; these are matters left to Congress. In the early many years of the nation, Congress modified the resolution of justices six diversified times, from as few as 5 to as many as 10, earlier than deciding on nine in 1869. In 1937, Franklin Roosevelt, frustrated by a reactionary supreme courtroom that resisted his Unusual Deal initiatives, proposed expanding the supreme courtroom’s bench to 15. Congress because it is miles going to be rejected that courtroom-packing scheme as an are trying to manipulate the courtroom to generate particular outcomes.
Biden, however, might maybe additionally now pretty and legitimately propose expanding the resolution of justices from nine to 11. This sort of selection would counterbalance the abuse of constitutional rules that enabled the affirmation of Neil Gorsuch and Amy Coney Barrett and the installation of the hardcore conservative bloc answerable for the Texas resolution.
This is now not any longer to affirm the effort would build success. Assuming Biden might maybe additionally salvage strengthen in the Dwelling, expanding the resolution of justices would require Democratic senators to first eradicate the filibuster, something that Senators Joe Manchin and Kyrsten Sinema staunchly oppose. And we know that Republican lawmakers, led by Mitch McConnell, would accuse Biden of dangerously politicizing the courtroom.
To which we might maybe additionally answer: pah-leeze. After all, it turned into McConnell who, in the wake of Antonin Scalia’s loss of life nine months earlier than the 2016 election, announced: “The American folks might maybe absorb to nonetheless absorb a divulge in the resolution of their next supreme courtroom justice. Therefore, this emptiness might maybe absorb to nonetheless no longer be stuffed unless we absorb a current president.”
Armed with a rule of his have advent and a Republican Senate majority, McConnell flagrantly refused to grant a listening to to Merrick Garland, Barack Obama’s nominee to absorb the supreme courtroom emptiness in the slay stuffed by Trump’s resolution, Neil Gorsuch.
However when Ruth Bader Ginsburg died, six weeks earlier than the 2020 election, McConnell without note pronounced a current rule. It turns out the American folks might maybe absorb to nonetheless no longer absorb a divulge in the resolution of supreme courtroom justice in an election three hundred and sixty five days when the incumbent president is a Republican.
The affirmation of Amy Coney Barrett did more than set up a supermajority of conservatives in the courtroom. The locus of power on the courtroom shifted from the more mainstream conservatism of Justice Roberts to the more ideological and rigid extremes of Clarence Thomas and Samuel Alito.
As the Texas ruling underscored, here’s a courtroom a long way more conservative than the nation whose constitutional meanings it is miles intended to give protection to. And it is miles a courtroom that owes its composition to the triumph of anti-democratic processes, in which a majority of its members were nominated by a president who lost the standard vote and/or were confirmed by a bloc of senators elected by a minority of voters.
In proposing the addition of two extra justices, Biden might maybe additionally hardly ever be charged with tit-for-tat politics or with further politicizing the courtroom. Conservatives would proceed to profit from a 6-5 majority, but with Justice Roberts, a stalwart institutionalist, serving as the swing vote. Were Biden to succeed, such a selection would make the courtroom more legit, no longer much less.
Lawrence Douglas is the author, most just these days, of Will He Recede? Trump and the Looming Election Meltdown in 2020 and is also a contributing concept author for the Guardian US. He teaches at Amherst Faculty
