Samuel Alito’s “Stop the Steal” flag display confirms what more and more Americans are coming to understand—the Supreme Court has become a core political institution, and a corrupt one at that. That Alito tried to blame his wife is upside-down in itself, although in-character detestable. Unless, of course, one chooses to believe that he never noticed his American flag being flown with the stars on the bottom and, like his fellow conspirator, Clarence Thomas, he never deigns to discuss such matters at the family dinner table.
For his exercise in inverted flag waving, Alito has been called on to recuse himself from January 6 cases, an entreaty that he, like Thomas, is certain to ignore.
With Alito one of the prime instigators, Americans have thus become subject to dictatorial rule from unelected ideologues serving for life (although, as will be seen below, they should not be) who are immune from oversight. As “Brutus” wrote in 1788, opposing ratification of the Constitution, “the opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal.”
Conservatives have decried the accusation that among the current roster of justices are those who are merely “politicians in robes.” They are correct. Politicians are far less powerful.
Given that Justices Alito and Thomas are irredeemable, with Neil Gorsuch not far behind, and John Roberts is not sufficiently inclined or forceful to ride herd, only drastic action will allow the Court to even approach the role of impartial arbiter that the Constitution intended it to be.
Simple band-aid reforms will nowhere near suffice. Term limits are certainly part of the solution, although their impact would not be felt for decades. Trying to restrict the Court’s authority, which Article III gives Congress the right to do, will inevitably descend into endless squabbling as to what sorts of cases should be proscribed. A code of ethics, even one stronger than the current SNL version, will simply be brushed aside.
The only solution, as I have written before, is to expand the Court. Not only can it be done in such a way as to create a more fair institution, but it would also comport to the manner in which the Framers expected—or at least hoped—the Supreme Court would function.
As Brutus’s essay indicates, the creation of a national court system was one of the most controversial facets of the new Constitution. To try to avoid states’ refusing to ratify the plan, the delegates kept Article III extremely short—only six paragraphs—and delegated the practicalities to Congress.
And so, after ratification, the first thing that the new Congress did was pass the Judiciary Act of 1789, which mandated that the Supreme Court have six justices, each of whom would also preside over circuit courts in six specific geographic areas, delineated by population and perceived importance to the new government.
For almost a century, with rare exceptions, the number of justices was pegged to the number of circuits, which increased as the nation grew. The court was thus increased to seven justices in 1807, and in 1837 to nine. For a brief period beginning in 1863, there were 10 circuits and 10 justices. To throttle President Andrew Johnson, Congress reduced the number of justices to seven in 1866, but then, in 1869, with Johnson gone, set the number at nine, where it has remained ever since.
The nation has grown a great deal since 1869, and with it the number of circuits, of which there are now thirteen. Although Supreme Court justices no longer “ride circuit,” as they did originally, each of them exercises a supervisory role over one or more of the current number. The principle that the Supreme Court should expand as the country does has been abandoned.
That is a mistake that can be rectified.
The Court should be expanded to thirteen justices, to match the number of circuits. The key to avoiding partisan chaos and preventing every new party in power from popping more justices on the bench is to add more circuits only when population growth makes it appropriate, two at a time. In this way, the Court would be fixed at thirteen justices, only increasing by two if circuits increased by two, with a strict formula pegged to the census to prevent arbitrary additions.
To further deter partisan bickering, the four new justices should be selected by a bipartisan committee, composed of lawyers, judges, law professors, and public advocates. Their choices would then be nominated by the president. If the committee does its job properly, the four nominees would not be from the extreme wing of either party and thus be able to restore some balance to a Court now run amok.
Term limits could and should be imposed, which again would conform to the expectations of the delegates. Although “shall hold their Offices during good Behaviour,” has heretofore been interpreted as “for life” by most scholars and just about every judge, there is a persuasive body of evidence that the delegates saw a distinct difference in the two phrases.
In a debate on the term of the executive, for example, George Mason, one of the most influential delegates, warned that he “considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy.”
While discussing the term of the executive, James Madison proposed “good behaviour, or Seven years with exclusion forever afterward.” Madison could hardly have meant “life” as the alternative to a hard limit of seven years.
Alexander Hamilton at one point told the delegates, “Let one branch of the Legislature hold their places for life or at least during good-behaviour. Let the Executive also be for life.” If one was an alternative to the other, they could not be the same.
In addition, for four long, hot months in Philadelphia in 1787, delegates who did not know and often did not like one another wrangled to try to find a means of government that would provide some centralized authority without granting any branch sufficient independence to wield despotic power over either the other branches or the states. It stretches credibility to believe that in the midst of these often-acrimonious negotiations, the delegates would be willing to create one branch—the one they trusted the least—that consisted of unelected, lifetime members with no checks on their behavior, short of impeachment, which was made intentionally impracticable.
But expanding the Court, regardless of how necessary it might be and how much it comports to what the Constitution was supposed to be about, cannot be implemented without a series of events taking place. President Biden has to be re-elected. Democrats must both hold the Senate and take back the House. The Democratic Senate, absent both Joe Manchin and Kyrsten Sinema, must then abolish the filibuster.
This trifecta will be difficult enough, but if it comes to pass, Biden MUST act. He must realize that the current Supreme Court will never police itself nor abandon its new role as the third political branch of government. His stated objection to expansion, that it will trigger retaliatory expansions when the White House changes hands, will be moot, because the population formula will prevent it.
A corrupt judiciary is key piece of every autocratic or one-party government. It will take hard work, commitment, and an active citizenry to make sure we are not one of them.
J'suis d'accord!