Reforming the federal judiciary must be at the vanguard of President Joe Biden’s domestic policy.
On September 18, shortly before 8:00 PM EST, news circulated across the nation and the world that Supreme Court Justice Ruth Bader Ginsburg had passed away due to complications with metastatic cancer of the pancreas. News of Ginsburg’s passing alarmed many on the left and energized those on the right — with the demise of Justice Ginsburg, a Supreme Court seat was open for occupation.
President Donald Trump and Senate Republicans led by Majority leader Mitch McConnell vowed to fill Ginsburg’s seat less than 24 hours after the news of her death rang across the world and less than two months before November’s general election.
Justice Ginsburg’s final wish before she passed away was for her seat to be filled by the victor in November’s general election. Senate Republicans and President Trump brazenly outfaced Ginsburg’s dying wish by nominating and confirming Amy Coney Barrett to replace Ginsburg two weeks before the election.
The installation of Amy Coney Barrett to the high court marked the apotheosis of a long-held ambition of right-wing legal scholars and judges to dramatically reshape the ideological makeup of the federal judiciary in a more conservative image.
Since 2017, Donald Trump has nominated a record 217 Supreme Court justices, federal circuit and district judges, the most of any one-term President since Jimmy Carter.
That was the last time the federal judiciary went under massive reconstruction.
A majority of federal judges that Trump has nominated and Senate Republicans have confirmed are in their late thirties and forties meaning that they will be on the court at least until the 2060s.
As a consequence of the federal judiciary’s rightward lurch, a future Congress controlled by the Democratic Party that passes legislation on climate change, immigration and healthcare could see their initiatives thrown out by a conservative judge based on the premise of “government overreach.”
The same applies for a Democratic president who signs a slew of executive orders directed at immigration reform or healthcare only to see their same initiatives thrown out by conservative judges on the same basis of government overreach.
Now that Democrats have taken back the Senate and the Presidency, they have a plethora of options they can use to defend themselves against a 6–3 conservative federal judiciary yet the most overwhelming is court-packing — copiously adding seats to the Supreme Court to overwhelm the Court’s current conservative majority, then fill those seats with judges who support progressive advances such as voting rights and are not predisposed to strike down progressive legislation.
Although the Constitution provides that there must be a Supreme Court, the Constitution does not postulate how many justices shall serve on the high bench.
Throughout American history, the Supreme Court has had as few as five justices serving to as many as 10 justices serving.
In 1937 President Franklin D. Roosevelt put forward a proposal to expand the number of justices to 15. President Roosevelt’s proposal proved to be unpopular with the American public and died in Congress. FDR’s reasoning for expanding the court was because the Court was gutting his New Deal programs.
Even if Democrats win back the Senate next month it’s far from clear if they will have the votes to pursue Court reform.
During the final weeks of the campaign, then-candidate Joe Biden disclosed that he was not an advocate for court-packing and would much rather put together a bipartisan group of legal scholars to debate the effectiveness of court reform and report back to him at the end of his first 100 days.
If Senate Democrats and President Biden refuse to pursue court reform via packing the court they have several options such as rebalancing the court with Republicans, Democrats, and centrists or passing legislation to override Court verdicts.
Political parties that capture The White House are supposed to govern for four years, not for 40. Yet under the current system, a President who is favored enough to fill a Supreme Court seat can continue to reshape our nation’s policy direction long after they have left the White House.
President Joe Biden has a myriad of reforms he can enact to weaken the Supreme Court and that just might be the most pro-democracy reform America could apply to halt our anti-democratic slide such as 18-year term limits for federal judges, court expansion, erecting a balanced federal judiciary in which no party has the upper hand, a Supreme Court lottery in which 180 federal appeals court judges would serve as associate justices of the Supreme Court for two weeks.
President Biden and Congress could also consider more hardball tactics at weakening the Supreme Court such as jurisdiction stripping, which is the act of lessening a court’s jurisdiction by Congress through constitutional authority. Furthermore, Congress could require a supermajority of Supreme Court justices to strike down federal laws such as the Affordable Care Act. Finally, President-elect Biden could simply resist the Supreme Court through an ideology known as “departmentalism.”
Under this conjecture, President Biden has notable power to undermine the judiciary’s ascertainment that a particular law is unconstitutional such as if the Supreme Court deems the Affordable Care Act unconstitutional President-Biden could edict the US Marshalls to not enforce the Court’s decision.
Moreover, the President could also instruct that his Treasury Secretary Janet Yellen continue to provide subsidies entitled by the Affordable Care Act to states and various individuals.
Besides, President Biden could routinely pardon executive branch officials who continue to pursue these payments, freezing a federal law that could hold these individuals to prosecution in a future Republican administration. Surmising that the next Congress does not have the votes to add additional justices to the Supreme Court and allows Biden to fill them, the Congress still has a sundry of options that could change the ideological landscape of the federal judiciary in ways that are less partisan such as legislation that would overrule Supreme Court decisions.
Realistically, if Senate Democrats and Joe Biden are truly committed to court reform they will have a two-year window to drastically reshape the federal judiciary into a judiciary that reflects the multicultural democracy we inhabit before Republicans regain the House or the Senate and obstruct the remainder of Biden’s agenda before the 2024 election.
The largest risk of a 6–3 right-wing Supreme Court is that the conservative justices will tough it out, handing down decisions that shift our jurisprudence rightward, but circumventing any new major attacks on landmark federal laws such as the Voting Rights Act of 1965 until after Republicans recapture one of the houses of Congress in 2022.
And once that occurs, American democracy will be at the leniency of a conservative federal judiciary with over 200 right-wing extremist judges and six conservative Supreme Court justices.