This piece was originally published in Dame Magazine.
A series of democratic failures has empowered the Supreme Court to usher in a new era of profound inequality. On diverse issues ranging from campaign finance to the rights of criminal defendants, a majority of the Court has regularly shortchanged precedent and embraced legal interpretations that privilege a white and wealthy minority at the expense of everyone else. But power is bestowed by the people; when government actors abuse it, they can lose it. The Supreme Court is fermenting threats to its own power and legitimacy by adhering to a far-right conservative agenda at the expense of the country and the Constitution. The Court’s plan to gut abortion rights is the latest example of its ever-increasing radicalism, and may turbocharge the public’s demands for change.
Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization is an astonishing attack on the rights of pregnant people and the very legal system meant to protect those rights. The draft opinion is, to be clear, a draft. Nevertheless, the Supreme Court is plainly preparing to formally relegate half of the population to second-class citizenship with rights and liberties conditioned on their reproductive status. It is cruelly ironic that Alito’s draft suggests people who disagree with his decision can simply vote about it, while ignoring ongoing comprehensive attacks on political participation including voter suppression and extreme partisan gerrymandering – much of which the Supreme Court itself has greenlit. Troublingly, the burdens of voting restrictions, like the burdens of abortion restrictions, fall hardest on communities of color. The Supreme Court has therefore made it so the people most harmed are least able to avail themselves of standard democratic tools to ameliorate harm. This is simply not how a democracy should function. By underscoring the broken politics and processes surrounding the Supreme Court, Dobbs may add fuel to the fire of calls for a democratized Court that works for all of us.
The Dobbs draft opinion—and the far-right leanings of the Court that produced it—is only possible because of a decades’ long and wildly successful plan to fill the federal judiciary with conservative ideologues, with the Supreme Court bench as the ultimate goal. Beginning in the 1970s, corporate interests wary of 1960s socio-political movements developed and funded comprehensive infrastructure to advance a far-right agenda, focusing on the judiciary as an instrument for social, economic, and political change. A crucial component of the plan to push back against left-leaning legal successes was the organization and mobilization of conservative lawyers and judges who could ensure that corporate America’s preferred socioeconomic and political order was upheld in the courts. It is in this ecosystem that the Federalist Society emerged and built an empire around shepherding future leaders of the conservative legal movement into judgeships. All six justices appointed by Republican presidents are current or former Federalist Society members.
The success of the conservative pipeline to the Supreme Court has also been dependent on strident constitutional hardball during the Senate’s judicial confirmation hearings that has politicized the process to the breaking point. The most glaring example is the stonewalled Supreme Court nomination of then-Judge Merrick Garland—followed by the fast-tracked confirmation of Justice Amy Coney Barrett. Garland did not even receive a hearing after Senate republicans invented an “election year rule” and effectively changed the number of seats on the Court for over a year—the longest Supreme Court vacancy since Congress settled on a nine-justice Court.
But as soon as it was politically advantageous to do so, Senate Republicans abandoned their made-up rule. Republicans who feigned concern that Garland’s appointment was too close to an election had no reservations about Barrett’s appointment during an election. It didn’t matter that 2020 was also an election year or that millions of Americans had already voted by mail. All that mattered was that Barrett is a reliable arch-conservative, so the Republican-controlled Congress began Barrett’s hearings a mere 13 days after her nomination—the fastest period since 1975. This allowed the far right to clinch an extremist 6–3 supermajority on the Supreme Court. Trump’s Federalist Society-approved nominees to the country’s thirteen federal appeals courts (which provide the final word on the vast majority of federal cases) were also confirmed at breakneck speed: Trump appointed nearly as many appellate judges in four years as Obama appointed in eight.
The increasing polarization of judicial confirmations has magnified the impact of other dysfunctions in our democratic system. Three sitting Justices—Barrett, Kavanaugh, and Gorsuch—were appointed during the term of a president who lost the popular vote. And the conservative bloc prepared to overturn Roe—Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett—were each confirmed by senators who represent a smaller share of the country than the senators who voted against them. Senate hearings have also not played a productive role in allowing for meaningful vetting of judicial nominees. Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett all gave assurances during their confirmation hearings that Roe and Casey are important constitutional precedents that have been repeatedly reaffirmed, thereby strengthening the cases’ value, and that they have no agenda to overturn the cases protecting this fundamental right – assurances that are now demonstrably worthless. And the Senate failed to call several witnesses prepared to testify under oath and corroborate allegations of sexual misconduct by Justices Thomas and Kavanaugh during their respective confirmation hearings. Commentators have observed that two men credibly accused of violating women’s bodily autonomy are now poised to issue a Supreme Court decision that will violate the bodily autonomy of millions.
The lack of structural democratic accountability is much of the reason why we ended up with a Court so out of step with the public and with mainstream legal thought. But it could also spell a crisis for the Court’s own legitimacy, spurring new attention to the broken system that gave us today’s radical supermajority and garnering momentum for efforts at Court reform.
Abortion rights are overwhelmingly popular. Pew Research Center data indicates that 61% of Americans think abortion should be legal in all or most circumstances, and only 8% of U.S. adults think abortion should always be illegal. Politico data similarly shows that a clear majority of the country would disapprove of the Court overturning Roe v. Wade. Opinions on the Supreme Court are a closer call, with only 54% of U.S. adults saying they have a favorable opinion of the Court while 44% have an unfavorable view. Strikingly, only 17 percent of adults say the justices are doing a good job keeping their own political views out of their decisions. That’s dangerously low for an institution that derives its power from the public’s confidence that its decisions are based on what the law requires and not political agendas.
And Dobbs is just the beginning. As a clear pattern of radical rulings emerge across cases and issue areas, trust in the Court is likely to fall further. This unsustainable situation has led political scientists to predict decreased approval of the Court and increased calls for reform measures such as Court expansion, term limits, and limits to the Court’s jurisdiction or its discretion over the cases it gets to hear. Some scholars have also recommended reforms to constrain the Supreme Court’s ability to invalidate certain types of legislation, or regularize Supreme Court appointments and judicial turnover. Proponents argue that such reforms would push back against extreme conservative court-capture by fostering a judiciary that’s more representative of democratic preferences and better reflects the diversity of the public that courts are supposed to serve.
Structural changes like these would require congressional action, and some could require a constitutional amendment. Large-scale reforms to the Court were inconceivable as recently as a few years ago. But court reform movements have a long history at the state and federal level – and have often seemed impossible until changes in the political environment made them all but inevitable.
The U.S. Supreme Court is an international outlier in many respects when compared to the high courts of other countries, including how much authority justices wield–and for how long–and how narrowly they view guarantees of equality and social and economic rights. Federal lawmakers have made some proposals to begin to reorient the wayward Court. Congressional legislation has been introduced that would increase the number of Supreme Court justices from nine to thirteen. Another bill would establish term limits of 18 years for Supreme Court justices. There is also pending legislation to establish protections for federal judiciary employees from discrimination and whistleblower retaliation, and consequences for judicial misconduct. And several bills would strengthen ethical requirements, such as by facilitating the creation of a new code of conduct for the Court or urging justices to formally subject themselves to the code that exists for other judges, prescribing what circumstances warrant recusal, and more.
A democratized judiciary is possible, and it’s not what we have now. The present processes by which people ascend to the Court, stay on the Court, and wield power once on the Court are deeply and transparently flawed. And the Dobbs draft provides a stark example of how the Court is increasingly both a product and a source of antidemocracy in the United States. There is no single solution to repair our broken democracy, and many ideas warrant further investigation. Given the Court’s extremist behavior, the pressure for such investigation and substantive reform may come sooner rather than later—as it should.