In the wake of the Capitol attacks and Joe Biden’s ascension to the White House, Donald Trump’s rushed confirmation of Justice Amy Coney Barrett to the Supreme Court has become something of an afterthought. Still, the critiques of her confirmation process — as well as the questions they raised — have never been more urgent. With Democrats now in control, SCOTUS reform is back on the table. Last week, President Biden began staffing a bipartisan commission dedicated to examining the Supreme Court and federal judiciary, following through on a pre-election promise to address a court system that’s “getting out of whack.”
As the only branch of government that does not answer directly to the American people, the judiciary has enjoyed a bloated influence in our politics. Nine disproportionately white, male, and wealthy Supreme Court justices have enormous sway over personal and partisan issues that affect the entire populace. And stare decisis, the principle by which the Court adheres to precedent, means that it is decidedly conservative in its outlook. Why should a handful of unelected judges determine the fate of healthcare, reproductive access, LGBTQ equality and voting rights?
In recent years, the Court has opened the door to dark money in politics, given the green light to partisan gerrymandering, gutted the Voting Rights Act, and chipped away at union protections, consistently favoring corporate interests over the needs of everyday people. Its justices have proven themselves to be out of touch with the current political climate — a reality exemplified by Chief Justice Roberts’ declaration, after the Court’s decision to strike down a key part of the Voting Rights Act in 2013, that its protections were no longer needed because “Our country has changed.” A mere month later, Trayvon Martin’s killer was acquitted in Florida and the slaying of Michael Brown in Ferguson, MO., gave rise to the #BlackLivesMatter movement.
When the Court does vote in the interests of historically marginalized people, its protections are seldom secure and often at the mercy of those in power.
While the judicial branch was designed to operate above the partisan fray and act as an impartial arbiter of the law, the explosive disasters that were the last three appointments alone prove the Founders’ intentions were always a fantasy. One need only read Brett Kavanaugh’s opening statement before the Senate Judiciary Committee in 2018 claiming himself the victim of Democrats’ “revenge on behalf of the Clintons” and viciously attacking the woman who accused him of sexual assault, Christine Blasey Ford, to see how deranged the SCOTUS appointment process has become. The whole monstrous spectacle was described by the New Yorker as “Trump-like.”
What’s worse, Supreme Court appointments allow presidents to set an ideological agenda that long outlives their time in office. Selecting justices is one of the most important powers a president has (and sometimes vice-versa). The hypocritical sparring match between Democrats and Republicans that accompanies these appointments has become an embarrassing tradition. Today, the Court is a political weapon that threatens, rather than nurtures, democracy.
But it doesn’t have to be this way. In fact, Article III of the Constitution, which establishes the existence of a Supreme Court, is quite vague in its prescription for the judicial branch. The Founders set no constitutional stipulations regarding the age, experience, or citizenship of Justices. Many details — like the size of the Court, which has fluctuated over time — were left to the President and Congress to decide. There exist a number of (widely supported) ways to fix the Court, from eliminating lifelong terms for justices to revoking their power to choose their own cases.
In this moment of social and political upheaval, we need a Court that’s prepared to meet the challenges of the day. More importantly, we deserve a Court that represents the interests of the American people. Below are 13 numbers that illustrate the urgent need for SCOTUS reform.
Sixteen of the last 20 justices were chosen by Republican presidents, even though Democrats have won the popular vote in seven of the previous eight presidential elections.
108 justices, of the 115 in the Court’s 232 years, have been white men.
The first African American Supreme Court justice, Thurgood Marshall, was not appointed until 1967. (Justice Ruth Bader Ginsburg, only the second woman, was appointed in 1993)
Eight of the nine current justices attended Harvard or Yale.
77% of Americans do not want Supreme Court justices to have lifetime appointments, according to the nonpartisan group Fix the Court.
The average tenure of a U.S. Supreme Court justice is 16 years.
The size of the Court has changed 6 times but not since 1869.
650,000 DACA recipients are at risk of deportation should the Supreme Court vote to end the program, which was last upheld in a narrow 5-4 vote.
One in three people of reproductive age could lose access to abortion in their state if Roe v. Wade were overturned.
There’s been a 70% increase in the number of married same-sex households since 2014, the year before the Supreme Court legalized same sex marriages.
55% of Americans (76% of Democrats and 32% of Republicans) think the Court should rule based on a contemporary understanding of the Constitution, while 43% want to defer to its “original” intent.
Four of the nine current justices are originalists: Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas.
46% of Americans did not want Barrett confirmed in October 2020, higher than any nominee since 1987 (Kavanaugh scored 45%).
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Clara Liang is a writer based in San Francisco and Assistant to the Managing Editor at In These Times. She recently graduated from Carleton College with a degree in American Studies and Race, Ethnicity, and Indigeneity Studies.