On Friday, I made the case that the Supreme Court is no longer legitimate because three of its justices were picked by Donald Trump (who didn’t win the majority of the popular vote) and confirmed by a Senate where the Republican majority of Senators don’t represent a majority of the nation’s voters. These three justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—should resign. Then, President Biden, who did get a majority of the popular vote, and the Senate led by Democrats, who do represent a majority of the voters, should go through the normal nomination and confirmation process to replace these justices. In fact, I think the replacements should be confirmed by no less than 60 Senators, to show they have broad support across the country, and thus make their legitimacy clear.
Yesterday, I discussed revoking the agreement to abide by Marbury v. Madison. This would mean that SCOTUS decisions on the constitutionality of actions by the Executive Branch would no longer be recognized by that branch.
The foreseeable consequences of putting Marbury aside should be sufficient to force the most recent three justices to resign. In effect, it would mean their opinions would simply be ignored.
But what if it weren’t enough?
Each of the justices on the Court has a personal history. If Gorsuch, Kavanaugh, and Coney Barrett aren’t willing to leave even after rescinding Marbury, then it might be time to go through the justices, one by one, and look at their histories. It’s entirely possible that one or more of them should be impeached and removed. It just depends on what’s in their records.
In theory, the FBI could do a new investigation of each of these justices. I realize they were vetted when they were first confirmed. But, frankly, I’m not sure the FBI was able to freely investigate these people with Donald Trump in charge. Trump is well-known to have obstructed justice whenever it suited him.
Such investigations should not be confined to Trump’s picks. And that might have the effect of forcing more than three justices off the Court. It’s entirely possible that four or five justices picked by Republicans might have to leave.
This is a drastic step, and one that may have many negative consequences. Perhaps the best thing is to simply live with the situation where the Executive ignores the rulings of the Judicial Branch. This situation negates the influence of the Trump picks, and it frees up the President to take bolder action on other initiatives than possible under Marbury.
What are the alternatives to forcing justices off the Court?
We could add justices. But as I pointed out Friday, not only is it unlikely Democrats will actually balance the Court by adding justices, what is to stop the Republicans from coming back later and adding conservative justices? Unpacking the Court is a much less radical solution than adding justices.
Regardless whether President Biden gets resignations or not, we need some long-term fixes. Some of these have already been floated, elsewhere. Generally, these ideas are either to set age requirements or to set term limits.
I’m not fond of either of these. First of all, they would not take effect, in all likelihood, until long after I’m dead. They could only be applied to new Court appointments. Second, they seem arbitrary, possibly forcing the best minds off the Court at the most inconvenient times.
Instead, I think we should support a constitutional amendment that requires a couple things.
First, it should set an exclusion time around the election. I propose an exclusion period from 90 days before each presidential election to the day of the inauguration following that election. During that time the President would be prohibited from nominating justices and the Senate would be prohibited from confirming them, unless they were nominated before the period started.
Second, it should require nominations only come from a President who has received a majority of the popular vote.
Setting term limits or age requirements would affect justices, and we can’t and shouldn’t change the terms of their appointment during their tenure. But setting an exclusion time and requiring nominations come from a President elected with a popular majority could take effect immediately, since these are changes to the nomination process.
These changes would avoid the problems created by Trump’s picks. The legitimacy of the Supreme Court appointments would be clear. The President making the appointment would have a majority behind him or her. Also, the exact time frame for appointments would be clear. The President could not nominate in the heat of the campaign, nor could a justice be added by a lame duck President or Congress. Prohibiting a nomination eight months prior to the election, as in the case of Garland, is not appropriate. But a few months before and after the election would not injure the Court, which would normally have eight justices to carry on while a new appointment was made.
If Republicans would agree to this amendment and help get it through Congress and the legislatures, perhaps not all of the Trump picks need to leave the Court. Maybe one or two could stay, because we would have a long-term fix in exchange for the short-term problem.
In any case, what we’ve seen over the last few years with the Republicans packing the Court* is a foul injustice that must be addressed if we are to have faith in the rule of law in the United States. President Biden has the opportunity and the power to correct this problem. He should do so immediately, before the injustice becomes baked into the fabric of the Court.
* I’m using the term “packing the Court” colloquially to mean “putting justices on the court with the intention of changing its ideology to suit the packers”. People generally think of court packing as adding justices and then putting people with a convivial ideology in those new positions. But, the purpose of packing is to get an ideological result. So, I stand by my usage. Credit VCLib with noting this is not entirely standard usage.