Friday’s U.S. Supreme Court decision giving Texas abortion providers a narrow path to challenge th law was not a victory for abortion providers. It was not a victory for all the people in Texas who might get pregnant in the coming months. It was a defeat for Roe v. Wade and our rights, and a prelude to a possibility of an out-of-control judiciary so frightening that even Chief Justice John Roberts is sounding alarm bells. He is making the case for Supreme Court expansion, implicitly if not explicitly.
The action the Court took today, dismissing a challenge from the federal government and ruling that it cannot defend a law that the Supreme Court has declared constitutional, essentially undermines the court, Roberts suggested.
“The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings,” he wrote. The Texas law and the court’s decision threatens the supremacy of federal law and the vindication of constitutional rights. It undermines the rule of law. It undermines the Constitution.
It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” […] Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” […] The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
SB 8 was written expressly to evade judicial review, removing the state from enforcement of the law and putting it in the hands of private citizen vigilantes, and the Texas legislature passed it expressly to flout previous Supreme Court rulings on abortion. The extremist majority of the court just rubber-stamped that maneuver, inviting states to pile on with laws designed to circumvent federal courts.
Justice Sonia Sotomayor was more emphatic than Roberts, but agrees. She compared SB 8 to “the philosophy of John C. Calhoun, a virulent defender of the slaveholding South,” who supported state nullification of federal laws. “Lest the parallel be lost on the Court,” she wrote, “analogous sentiments were expressed in this case’s companion: ‘The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.’”
“S. B. 8 raises another challenge to federal supremacy,” she continued, “and by blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment.”
It’s actions like this that both delegitimize the current court with its Trump-packed extremists and bolster the case for court expansion, even among previous skeptics. Even members of President Joe Biden’s Presidential Commission on the Supreme Court have been coming around. Kermit Roosevelt III is one of them. The University of Pennsylvania law professor served on the commission. “I went into the process thinking that the system was working but that improvements were possible,” he wrote in an essay for Time. “I came out scared. Our system is broken in two obvious ways, that threatens America’s self-governance. One of them is about the long-term legitimacy of the judiciary. The other is an immediate crisis.”
He writes, “We are witnessing a minority takeover of our democracy,” and that “the Republican party [is] attacking democracy, and the Supreme Court is helping it.” While he argues for term limits as a solution to part of the problem of the court’s legitimacy, the immediate crisis facing our democracy demands more. “The only reform that fixes this problem now is court expansion,” he concludes. “That could give us a majority of Justices who would defend democracy against these assaults instead of participating in them.“
“I have always viewed expansion with great skepticism, as a last resort, the fire axe in the glass case on the wall. But we may well be at the point of breaking that glass now.”
Nancy Gertner, a retired U.S. District Court judge, and Laurence H. Tribe, Carl M. Loeb University professor emeritus and professor of constitutional law emeritus at Harvard Law School, also served on the Commission and they have also penned a column calling for expansion, writing: “We did not come to this conclusion lightly.” They, too, write that they came to the Commission thinking that term limits would be a sensible reform and court expansion too much, but “ended up doubtful about term limits but in favor of expanding the size of the court.”
They detail what they call their lack of confidence in the Supreme Court: “first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the ‘stench’ of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.”
These decisions, they write, “put the court—and, more important, our entire system of government—on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy.” Expanding the court, they argue, would be “Offsetting the way the court has been “packed” in an antidemocratic direction.” It’s also “the most significant clearly constitutional step that could be taken quickly.”
While Roberts wouldn’t agree that the court’s decisions on elections, voting rights, and dark money are a serious problem—he’s been a willing participant on that dark path—he certainly makes the case that the Court’s legitimacy has been thrown into question by Friday’s SB 8 ruling. Privately, he might even recognize that his own legitimacy as chief justice, and the legacy he leaves, would be enhanced by an expanded court. As it is, he’s in danger of being remembered as the chief justice who oversaw the dismantling of our democracy.