As a pair of Supreme Court decisions from the Republican majority showed this week, they feel free to do exactly what they were appointed to do: Impose their far-right ideology on an unwilling public.
The most recent, unsigned opinion was part of the court's "shadow docket," which, as Salon's Igor Derysh explains, is "where the justices hand down largely unsigned short opinions without going through standard hearings, deliberations, and transparency." Typically reserved for uncontroversial or emergency petitions, Derysh reports that "the shadow docket has dramatically grown under the increasingly conservative Supreme Court, alarming legal experts."
For a brief, shining moment early in Joe Biden's presidency, there was a flurry of talk about the exciting possibility of resizing the Supreme Court in response to Donald Trump, despite losing the popular vote, still getting to appoint three justices — one into a seat illegally held open by then-Senate Majority Leader Mitch McConnell. But that chatter quickly got destroyed by Democratic dream killers Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, both of whom apparently love the filibuster more than human rights.
University of Wyoming law professor Stephen Feldman, however, thinks now is the perfect time to revive the discussion, arguing that court-packing is a vital necessity to save our democracy.
In his new book "Pack the Court!: A Defense of Supreme Court Expansion," Feldman argues that not only is court expansion politically wise, it also fits in with a long history of seeing the courts not as separate from politics, but working within a political system. Feldman spoke with Salon's Amanda Marcotte about his new book and why it's not time to give up on the dream of a better Supreme Court.
This interview has been edited for length and clarity.
People talk about the Supreme Court as if its size and makeup is practically ordained by God — or at least the founding fathers. You argue that it's not so, and historically there's been a lot of flexibility around the size of the Supreme Court. Can you tell me more about that?
Number one, the Constitution itself doesn't say anything about the size of the Supreme Court. The part of the Constitution talking about the federal judiciary is very sparse, with almost no detail in there. It was basically left to Congress to set out the court's size and to some degree, its jurisdiction. And the fact is that Congress, particularly for the first hundred years or so, was fiddling with the size of the court. The first Judiciary Act established the court, at that point at six justices. But Congress started fiddling with it, within just a few years, like around 1800. And around that time, the Congress tried to shrink the court by one justice. And then there was an election, where power changed and they changed the size of the court again.And that continued all the way up through 1860s. It was very volatile decade in terms of, of trying to manipulate the number of justices on the court. So it changed multiple times all the way up to 10 and then back to nine and then it's been stuck at nine. Well, for the most part since then.
I would say that when the Republicans refused to consider President Obama's nominee, Merrick Garland for the court, that was de facto changing the size of the court. Right? They didn't pass a statute, but they, in effect changed the size of the court for about a year.
Why do you think now is a good time to start talking about court-packing again? Why should the Democrats, who control the White House and Congress, consider doing such a thing?
There are three elements to the argument. Number one is the history: The court does not have to be set at nine justices, and the fact that it has been for a number of years doesn't mean it needs to be that.
Second, if you really look at the court's decision-making, what becomes evident is the actual process of deciding cases is infused with politics. The notion that we have to keep politics out of the Supreme Court just doesn't hold up. Not only with regard to the size of the court but also with regard to the nomination and confirmation processes, which are obviously political, right? Who the President chooses to send the court and whether Congress confirms that individual, the actual decision-making process by the justices is a combination of law and politics.
I call it the law-politics dynamic.
Law and politics dynamically interact in the decision-making process. If you have two justices from different sides of the political spectrum, they're reading the First Amendment free speech clause. They're likely to read it differently, right? And vote differently to decide a particular first amendment case. But it's not because either justice is lying or being disingenuous. They look at the text and they read it from their particular political perspectives. You cannot get away from the fact that their political horizons and their cultural backgrounds, their religious backgrounds are going to influence how they interpret the text. That's simply inherent in the interpretive process. So politics is always part of it.
The third part of the argument is just looking at the politics of the Roberts court. The Roberts court is extremely conservative and that's even before Justice Ginsburg passed away and the Republicans rushed through the confirmation of Justice Barrett. They keep handing down very conservative decisions, one after another. And really the only way to counter that is the court-packing.
Let's say somehow the Democrats did pass some type of voting rights protections, a new statute protecting voting rights. The odds are extremely high that this court would find some way to strike down that voting rights legislation.
Both Brett Kavanaugh and Amy Coney Barrett presented themselves, when they were getting confirmed, as impartial judges, just calling balls and strikes. They claimed not to be political ideologues.
Every Supreme Court nominee needs to say something along those lines, right?
"We'll just call balls and strikes, just by following the law, my politics will never matter."
They'll say that and in some ways it's true. What I'm saying about how politics influences Supreme Court decision-making, doesn't mean that it's purely politics. I think that in most cases, not every case, in most cases, the justices sincerely try to interpret the relevant legal texts and constitutional text or a statutory text, whatever, in the best way possible. They tried to give it the best interpretation. But again, that the way each individual justice uses the text or what they think is the best interpretation, is infused with their political-cultural backgrounds.
Legal interpretation is not like arithmetic. It's not two plus two equals four, right? It's never like that. One's politics will always come into play. The justices themselves might good faith say, yes, I will sincerely interpret the constitutional text. They very well might be totally honest about that and they might continue doing that when they are on the court, but nonetheless, their politics influence how they read or interpret texts.
The Democrats don't look like they're in any hot hurry to change the size of the court, but if they were going to, what would that look like? What would you think would be the best way to go about that?
All they need to do that is pass a statute, which means of course, that both chambers of Congress need to approve a bill and then the President needs to sign it and that would change the size of the court. And then the President can nominate new justices, depending on how many seats there are and it would go to the Senate for confirmation.
The President appointed this commission. I don't know what they might recommend. The odds that they would recommend straightforward court-packing, I don't think are extremely high, but it's possible. There are all sorts of proposals that have been suggested over the last couple of years for sort of more stylized types of court expansions. There'd be various plans to put term limits on the justices or expand the court.
I don't think anything is likely to happen right now unless the filibuster were eliminated. What needs to happen is the filibuster needs to go. Then there needs to be court-packing and then there to be protection for voting rights.
If you don't have the filibusters there's unlikely to be any type of court-packing. Right? And unless the court makeup is changed through court-packing, voting rights protections are likely to be struck down as unconstitutional and really much of any progressive agenda that could possibly get through Congress would be endangered in front of the Supreme Court.
People who criticize calls for court-packing say that the problem is Republicans will retaliate and add more justices themselves, next time they have power. What's your answer to that?
Well, I think the politics of the situation is that you can't have court-packing, unless you have control.
Democrats have control of the House, the Senate and the White House. If there's protection of voting rights that the Supreme Court would not strike down, then I don't think the Republicans, as currently constituted, could sweep the House, the Senate and the White House. The Republicans exercise outsized power right now, because of gerrymandering, because of the electoral power. But in 7 out of the last 8 presidential elections, the Democrat has won the popular vote. The Republican party would not have the popularity to sweep and implement court-packing. When the Republican party might actually sweep, it won't be the same Republican party that we have today.