The mounting calls for Stephen Breyer to retire from the Supreme Court are understandable. Just last fall, the death of Ruth Bader Ginsburg served as a tragic reminder of what can happen when the wrong president has an opportunity to replace an accomplished justice. But the narrow focus on Breyer himself misses the forest for the trees. Far more important than when Breyer leaves the bench is why so much in our political system rides on the arbitrary questions of when justices die or choose to retire. Whether Breyer retires in a timely fashion or not is less important than whether Democrats heed his misguided warning against expanding the Court—or act boldly to reform an institution that has become one of the greatest threats to American democracy.
In ordinary circumstances, Breyer’s argument that efforts to restructure the judiciary imperil trust in the courts and in the rule of law would be a compelling cautionary note.
These are not ordinary circumstances.
America’s minority political party has controlled the Supreme Court for more than 50 years, despite winning fewer votes than their opponents in seven of the eight presidential elections held in the last 30 years; the Court has helped the Republican Party cling to power by participating in its cynical attacks on democracy; a majority of the current Court was appointed by Republican presidents who took office after losing the popular vote; and a third of the current Court was appointed by a president who incited a violent insurrection at the United States Capitol in a desperate bid to cling to power after voters had decisively stripped it from him.
There aren’t many things more important than trust in the Supreme Court, but one of them is the trustworthiness of the Supreme Court. Distrust of institutions can be dangerous. But continued faith in institutions that do not deserve it, and that have been captured by narrow, anti-democratic political factions that use those institutions to impose minority rule—that is how democracies die. That is how people fail to act in time to prevent a slide into authoritarianism.
The Supreme Court of the United States threatens the survival of our democracy. The most practical way to neutralize the threat is to expand and rebalance the Court.
The Supreme Court and the consent of the governed
Echoing Chief Justice John Roberts’s famous insistence that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Justice Breyer suggests that it does not matter which presidents appointed the justices of the Court.
That’s an appealing thought, but nobody really believes this, other than perhaps the justices themselves. And people, even judges, tend to be quite bad at assessing their own impartiality.
If it were really the case that the party of the president who nominates a justice does not matter, Mitch McConnell and the Republican Party wouldn’t have refused to fill a Supreme Court vacancy for the final year of President Obama’s second term and promised to keep it open for as long as a Democrat was president, only to immediately confirm Trump’s nominee to the seat.
Obviously it matters which party fills a vacancy on the Court. Everybody knows this, including the Supreme Court justices, who time their resignations to ensure they are replaced by presidents of their own party. And it should matter. There’s value in Supreme Court justices being insulated from political winds. A Court cannot safeguard essential liberties if it acts as a political weathervane, or rubber-stamps the agenda of one political faction. That’s why we don’t have direct elections of Supreme Court justices, and it is the strongest argument for lifetime appointments. But the Court should not be disconnected entirely from the populace bound by its rulings. Government, after all, draws its legitimacy from the consent of the governed. That’s the value of having elected officials appoint judges: It creates some connection between the Court and the will of the people.
That’s the theory, anyway. In practice, the composition of the Supreme Court has become entirely disconnected from the will of the people. Through a series of flukes of history, undemocratic quirks of our system of choosing presidents, strategic retirements by sitting justices, and unprecedented manipulation of the size of the Court by the Republican Party, we find ourselves with a Supreme Court dominated by the political party that has received fewer votes in seven of the last eight presidential elections but has appointed 15 of the last 19 justices.
This GOP dominance of the Court is not a recent development, nor is it likely to be fleeting. For more than 50 years, Republican-appointed justices have held a majority of seats on the Court. Two-thirds of the American people were not even born the last time the Court had a majority appointed by Democrats, even though Democrats have consistently won the most votes in presidential elections over the last 30 years. And with a 6-3 majority, including the Court’s three youngest members, the Republican stranglehold on the Court is likely to persist for decades to come if we continue on our current course.
The 50-years-and-counting dominance of the Supreme Court by America’s minority political party is, by itself, enough to render the Court unworthy of our trust: It violates the principle that the government’s legitimacy flows from the consent of the governed.
The Supreme Court has been captured by an authoritarian party bent on destroying democracy for its own gain
We must also consider the nature of the Republican Party that has gained control of the Court. The GOP has revealed itself to be a white-supremacist party, deeply hostile to the very concept of democracy. One-third of the current Supreme Court was appointed by a president who took office after losing the popular vote, due in part to his successful plea for the assistance of a hostile foreign power, who then fired the FBI director for investigating that assistance, and was impeached for attempting to secure the assistance of yet another foreign nation in his re-election effort, and who upon a decisive defeat, incited a deadly insurrection at the United States Capitol in a desperate bid to retain power.
Trump’s appointees are the three youngest members of the Court, poised to exert enormous influence over every aspect of American life for decades. If a decade ago I had suggested that, within 10 years, a president who cheated in his election, lost the national popular vote, and incited an insurrection would over the course of a single term appoint a third of the court, nobody would’ve believed me—but nobody would’ve viewed it as an acceptable outcome, either.
It is folly to overlook what we know about the Republican Party when we assess the danger of a Supreme Court it has controlled for 50 years and is poised to control for decades to come. Leaving the Court in the hands of a party that is actively working to dismantle democracy and impose minority rule on America is a bit like hiring Matt Gaetz to chaperone the junior prom.
The Supreme Court has assisted the GOP’s assault on democracy
Justice Breyer argues that because the Supreme Court didn’t help Donald Trump overturn the clear and unambiguous results of last fall’s election, the Court must not be conservative or partisan. Breyer sets the bar so low an ant could trip over it. Trump’s loss was too large, and his legal challenges too farcical, for the Court to save him. But that doesn’t mean the Court hasn’t spent decades helping the GOP—or that it won’t put its thumb on the scale in favor of a future Republican who comes closer to winning than Trump.
From Shelby County v Holder, in which the Court gutted the Voting Rights Act, to Citizens United v FEC, in which it opened the floodgates to unlimited corporate spending on elections, to Janus v AFSCME, in which it struck a blow against the ability of workers to organize in unions, the conservatives on the Roberts Court have worked hand-in-glove with Republican lawmakers to undermine democracy and make it easier for the GOP to seize power against popular will. Last year, the Court even sided with a Republican effort to make it harder for people to vote in the middle of a pandemic. And, of course, we’ve seen what a Republican-dominated Supreme Court can do with a close presidential election: In 2000, George W. Bush secured the presidency when five Republican-appointed justices—one of whom was appointed by Bush’s own father—prematurely stopped vote-counting in Florida with Bush ahead by a mere 537 votes. The Court’s decision was so absurd it apparently embarrassed its own authors, who insisted it not be used as precedent in future cases.
Even with decades of Court decisions that tilt the playing field in favor of Republicans, Donald Trump didn’t come close enough for the Court to nudge him over the finish line. That doesn’t mean Brett Kavanaugh, Clarence Thomas, et al. aren’t partisans—it just means Donald Trump is a giant loser.
We need look no further than the Court’s evisceration of the Voting Rights Act to understand the damage already done to our democracy—and the additional damage we risk by leaving a 6-3 conservative majority in place. Writing for the conservative majority, Chief Justice Roberts argued the VRA was outdated because, he claimed, racial discrimination was no longer a barreir to voting—an absurd argument that Justice Ginsburg likened to “throwing away your umbrella in a rainstorm because you are not getting wet.” Sure enough, as soon as Roberts snatched away the umbrella, a deluge of Republican voter suppression laws followed. And now, in the wake of yet another electoral defeat, Republicans are racing to enact more voter-suppression laws. Democrats hope to counter those efforts by passing the John Lewis Voting Rights Act. But the Supreme Court has only grown more conservative and more partisan since it gutted the original, making Court reform essential to preserving democracy reform.
A Republican-appointed Supreme Court that guts the Voting Rights Act on the premise that racism is over, even as the Republican Party continues its tireless efforts to disenfranchise black voters, is simply not worthy of trust.
Republican-appointed justices have proven untrustworthy
So the Supreme Court collectively has proven untrustworthy in both its composition and its rulings. The justices themselves give us further cause for distrust. Clarence Thomas likely lied during his own confirmation hearings. Brett Kavanaugh, too. Both are credibly accused of sexual misconduct—Kavanaugh of sexual assault. Kavanaugh has a history of partisanship that is completely incompatible with the notion of the justices as impartial, including the angry rant he unleashed during his confirmation hearings, which included a threat of reprisal against his critics. Kavanaugh and Samuel Alito had a private meeting with a conservative anti-gay activist whose organization filed amicus briefs in cases pending before the Court—a meeting that would likely violate the code of conduct for federal judges, if the code applied to the Supreme Court. Thomas’s wife is a conservative lobbyist who cheered on the Trump rally-turned-insurrection in January, and whose close relationships with the Trump administration and other Republican causes pose countless conflicts of interests.
Court expansion is the path to a trustworthy Court
Justice Breyer’s concern about trust in the Court is no doubt sincere; he’s been warning of the dangers of eroding that trust for decades. In his Bush v. Gore dissent, Breyer wrote “in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure.” But a greater treasure still is a trustworthy Court—and we do not have one. We have a partisan Court, captured by our political minority, helping to impose minority rule on the nation.
Expanding the Supreme Court by adding four new seats is the most practical way to rebalance it and restore the connection between the Court and the consent of the governed. It would dilute the influence of justices appointed by a seditious president who incited a violent insurrection against our government. And it would give essential democratic reforms, like the John Lewis Voting Rights Act, a fighting chance.
Critics of court reform warn that expanding the Court would risk weakening our democracy. Leaving the Court in the hands of justices appointed by a party that is actively working to dismantle democracy and impose minority rule on America would guarantee it.
Jamison Foser is a consultant and writer. The views in this column are his own. Follow him on Twitter @JamisonFoser.