Mother Jones | How the Left Lost Faith in SCOTUS and Learned to Love Packing the Court
Climate, abortion, LGBTQ, and gun control groups want to expand the court—before it is too late.
Story Originally Appeared in Mother Jones
By Pema Levy
On the spring day last year the Supreme Court announced it would hear a direct challenge to Roe v. Wade, Sarah Lipton-Lubet knew immediately how the case would end: the court, stacked with six conservative Justices, would kill the right to abortion. A veteran reproductive rights advocate and lawyer who was consulting for multiple reproductive rights groups at the time, her realization was followed by another: She needed a new job. She’d spent the better part of two decades fighting for abortion access, relying on a backbone of judicial decisions that upheld reproductive rights—and on the premise of a Supreme Court that would uphold those precedents. But that wasn’t going to cut it anymore.
“Simply trying to move around the pieces on the playing field that existed was not going to treat this like the crisis that it was, the crisis that it is now.” Instead of rearranging deck chairs on the Titanic, she needed to plug the hole and right the ship. About two months later, she became executive director of Take Back the Court. This is an advocacy group that since 2018 has been leading the movement to add four justices to the Supreme Court and dethrone the conservative majority that now controls it. With the legal precedent central to her previous work now dead, Lipton-Lubet is fighting to change the make-up of the court before every other progressive priority goes the way of Roe. “I’ve never felt more hopeful about my work,” she says.
The movement to reform the Supreme Court is gaining momentum and credibility at a rapid pace in large part because of people like Lipton-Lubet—advocates for progressive causes who watched the ascension of Trump-appointed justices to ill-gotten seats on the bench and have now concluded that their life’s work can never be realized if the Supreme Court’s current conservative majority remains in power.
Staring down the court’s new term, which began last week, reform feels even more urgent. The court stands poised to allow more pollution of America’s water, to end affirmative action in college admissions, to give businesses the right to discriminate against LGBTQ people, and to green light gerrymandering schemes that disempower people of color. And that’s just the big cases in the term’s first three months. This is worse than a nightmare for the left, as SCOTUSBlog founder Tom Goldstein explained in July, because “you wake up from a nightmare and it’s over at some point.” But this court’s rulings will shape American life “for the next quarter century.”
Once considered both practically impossible and political suicide, there are now roughly 63 members of Congress who’ve sponsored legislation to expand the court, with several more behind legislation to impose term limits on the justices. Under pressure from the left, President Joe Biden summoned a commission to study Supreme Court reform, including court expansion, something inconceivable just a few years ago. On the heels of the high court’s decision to undo abortion rights this summer, advocacy groups focused on reproductive rights, LGBTQ rights, gun control, environmental issues, and climate change have all, for the first time, begun advocating for added justices.
“These are lifetime appointees. If we don’t act, they’re going to be in power on this court and attacking our environment, our democracy, and civil rights for the rest of our lives.”
All this has also made the American public skeptical about the court’s current setup. Polls show the court’s credibility at an all-time low. And while advocates, lawmakers, and academics on the left are debating how, exactly, to fix the court, two ideas are quickly becoming a consensus: that upending the Supreme Court’s current structure is essential to the future of American democracy, and that the window to pull this off is up against a running clock. The Supreme Court is poised to reshape voting rules to make it harder for Democrats at all levels of government to win elections in 2024 and beyond. As the movement for reform works to win enough support in Congress, the possibility of a Republican takeover would postpone their project for years to come.
“The court is only becoming more radical, only becoming more unhinged,” says Lipton-Lubet. “The real question is just how long is this going to take until we act? And how many people are going to be hurt in the interim that wouldn’t have had to be if we had acted faster?”
The story of how modern Supreme Court reform went mainstream began in 2016, when progressives watched as Senate Majority Leader Mitch McConnell (R-Ky.) blocked the confirmation of Obama nominee Merrick Garland, citing a made-up rule that Supreme Court candidates should not be confirmed in a presidential election year. Over the next two years, McConnell ended the 60-vote requirement (known as the filibuster) to confirm Supreme Court justices to push through the nominations of first Neil Gorsuch and then Brett Kavanaugh. In 2018, two veteran Democratic staffers—Obama White House alum Chris Kang and ex-Hillary Clinton campaign staffer Brian Fallon—founded Demand Justice to fight Trump’s judicial nominees. Two months after Kavanaugh’s confirmation, Demand Justice expanded its mission to include adding four justices to the Supreme Court.
Around the same time, on the other side of the country, political scientist and activist Aaron Belkin founded Take Back the Court. Belkin, who spent a decade turning public opinion against Don’t Ask, Don’t Tell, devised a savvy strategy to put Supreme Court expansion in the spotlight: make it an issue in the 2020 Democratic primary. When an activist affiliated with the group landed a question about adding justices at a Pete Buttigieg town hall, Buttigieg expressed openness to the idea. “In some ways, it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today,” the candidate said. With one candidate now open to expanding the court, the media posed the same question to others, propelling the question of court reform into the headlines. Within weeks, the tally of presidential candidates open to court expansion reached five.
Then, days before the 2020 election, McConnell and Senate Republicans defied the precedent of their own creation to fill the late Justice Ruth Bader Ginsburg’s seat with conservative Amy Coney Barrett. This was their paramount achievement after years of norm-breaking maneuvers that secured three seats in four years on the court for GOP-backed Justices—and a 6-3 conservative majority unseen since the 1930s. Democrats had now won the popular vote in seven of the last eight presidential elections, but appointed just three of the court’s nine justices.
“The American people didn’t consent to a right-wing Supreme Court supermajority,” says Lipton-Lubet. “There’s just this absolute chasm between the Republican stranglehold of the court and where people are in this country.”
The first full year of the 6-3 majority’s reign displayed their eagerness to enact a far-right agenda. In June, the conservative justices overturned Roe v. Wade and Justice Clarence Thomas, in a concurrence, warned that the right to contraception, same-sex marriage, and some forms of sexual relations are next on the chopping block. As mass shootings and gun crime rocked the country, the court made it harder to regulate guns. Audaciously, the conservative justices mischaracterized the facts in one case to allow prayer in public schools; the liberals’ dissent included photographic proof of their deception. As climate disasters wreaked havoc worldwide, the court began to dismantle the federal government’s ability to fight climate change. And these were only the most sensational conservative victories.
The court’s apolitical sheen is a dangerous myth. Wipe away this gloss and court expansion becomes the obvious remedy to the court’s rightward lurch: It’s immediate, and it’s indisputably constitutional.
After all this—Republicans’ norm-breaking court takeover, and then the most norm-breaking Supreme Court term in recent memory—progressive policy advocates, the American public, and dozens of lawmakers on Capitol Hill have come to see Supreme Court reform as the only way out. Over the last year, sixty House Democrats have signed onto the Judiciary Act of 2021 to expand the court by four seats—including Reps. Adam Schiff of California and Gerry Connolly of Virginia, who are close to the Democratic leadership. The Congressional Progressive Caucus, with nearly 100 members, endorsed the bill, though it has not yet been scheduled for a hearing.
In August, five Democrats on the Senate Judiciary Committee introduced the TERMS Act to impose term limits on the justices, with two similar bills already proposed in the House. Multiple groups, including the left-leaning Center for American Progress and the ACLU, consider this reform idea less radical and more attainable than adding justices because it would affect all justices equally—and, at least in the past, has been endorsed by Republican colleagues Ted Cruz and Josh Hawley.
Increasingly, Democratic candidates are embracing the idea of reforming the court because it is popular among Democratic voters. This summer, the New York Times asked 11 of the state’s Democratic candidates for Congress if they supported expanding the court; all but one said yes. Last month, a Marquette Law School poll found that Americans are evenly split on the question of adding justices, with 51 percent in favor and 49 percent opposed. Nearly three-quarters of Democrats now support the idea, as do 51 percent of independents. Term limits are even more popular: A July poll found that more than two thirds of Americans—including majorities of both Democrats and Republicans—support them.
“When the Dobbs decision leaked, that was a watershed moment in letting us all know that the court is no longer an apolitical body,” says Kristine Kippins, deputy legal director for policy at Lambda Legal, which has helped secure major wins for LGBTQ rights at the Supreme Court, including the 2015 case that legalized same-sex marriage nationwide. In July, Lambda Legal joined three other LGBTQ legal rights groups in calling for Supreme Court expansion. This is a bold move because, as litigating groups, they risk angering the justices before whom they regularly bring cases. Their support is a signal that they have given up on this court.
“The more people understand that the Supreme Court is little more than the legal department of the Republican National Committee, the more clear the need for reform will be.”
The League of Conservation Voters (LCV), a leading environmental group, announced their support for expansion in June and has thrown itself into the effort to persuade Congress to act by lobbying on Capitol Hill and educating state-based affiliates and supporters through its voter education programs. LCV joined Unrig the Courts, a coalition of the most active pro-court expansion proponents where they coordinate and strategize their efforts. LCV has come to view democracy advocacy as one of its core issues alongside environmental concerns since Trump’s election, as it’s become clear that their group will struggle to advance their environmental goals as long as the Supreme Court bench looks like it does today.
“These are lifetime appointees,” says Doug Lindner, LCV’s Advocacy Director for Judiciary & Democracy. “If we don’t act, they’re going to be in power on this court and attacking our environment, our democracy, and civil rights for the rest of our lives. And so we are in it for the long haul.”
In June, two gun safety groups, Newtown Action Alliance and Guns Down America, also joined the call for adding justices to the bench, after the court issued a ruling that makes it harder for states to limit who can carry a concealed gun.
The support of issue-based advocacy groups for Supreme Court expansion continues to multiply, says Kang, as they come to see the current court as an existential threat. “Now these same organizations have understood, ‘Well, the only way to enact my agenda is to get rid of the filibuster first, the only way to protect my agenda is to reform the Supreme Court,’” Kang says. “So this has to be a complete theory of change from beginning to end.”
At Demand Justice, Kang and his team are working to explain this theory of change to the entire progressive movement. Demand Justice directly lobbies members of Congress, but Kang says he’s particularly proud of the group’s organizing work, in which they educate local activists from around the country and then bring them to Congress to lobby their own representatives to support the Judiciary Act of 2021 to add four justices.
“We had one meeting where a member of Congress actually showed up to the meeting itself and said, ‘You know what, you’re right, I’m gonna join the bill,” he recalled. “We think that this is the kind of real organizing from the bottom up that’s necessary not to build but to prove the movement that currently exists for Supreme Court expansion.”
Lipton-Lubet says Take Back the Court has an email list that has reached over 70,000 activists whom they ask them to help raise awareness about court expansion through specific actions and advocacy with their representatives. But most of the group’s work is behind the scenes. In the first half of 2022, the group met with 50 congressional offices. They also work with progressive and grassroots groups to explain how this court will trample their priorities unless it is expanded—Lipton-Lubet counts 130 groups that have joined in calling for court expansion since Take Back the Court was founded.
In May, for example, 11 state-based reproductive rights organizations together announced their support for court expansion after Lipton-Lubet persuaded them that reforming the court is key to the future success of their work. “Her in depth engagement with state-based repro groups allowed us to think differently about the role of the reproductive health rights and justice movement in democracy reform,” says Rebecca Hart Holder, the executive director of Massachusetts-based Reproductive Equity Now, one of the groups that signed on to the call for adding seats on the high court.
This Supreme Court term, one case in particular presents the opportunity for a blatant GOP power grab. In Moore v. Harper, the Supreme Court is expected to breathe life into a fringe rightwing legal theory to give Republican-controlled state legislatures nearly unlimited power over the administration of federal elections, unchecked by state constitutions and courts—even, possibly, the governor.
If the conservative majority embraces the theory, called the “independent state legislature doctrine,” congressional maps will become more gerrymandered and voter suppression efforts in federal elections could keep voters from the polls, making it harder for Democrats to win. A broad ruling by the court could even allow state legislatures to bend presidential election results to their will. The doomed attempts at election hijacking in 2020, in which GOP-controlled legislatures tried to deny Biden’s victory by selecting slates of fake Trump electors, could become legal in 2024, carried out under the auspices of the Supreme Court. This court “is serving the political interests and ideological goals of the Republican Party outside of the law,” says Lindner.
Those who want to reform the court argue that the Supreme Court wasn’t supposed to be this way. The country’s founders famously feared the dominance of political parties. So they certainly didn’t want one party to take over the Supreme Court. And they likely did not envision a Supreme Court deciding every major question in American life. “The Supreme Court in its current form has much more power than was initially envisioned,” says Ryan Doerfler, a Harvard Law professor.
At the time of the founding, the Supreme Court was expected to use the power of judicial review—invalidating acts of Congress—only “in cases of flagrant, unambiguous unconstitutionality,” Doerfler explains. Further, the Court was supposed to be subject to congressional regulation, which the Constitution explicitly grants.
With this in mind, some pro-court-reform academics argue that the final arbiter of the Constitution is meant to be the people, acting through their elected representatives, not the justices. After the Dred Scott decision in 1857 deprived Black Americans of citizenship and expanded slavery, as Harvard Law School professors Nikolas Bowie and Daphna Renan recently recounted in the Atlantic, Abraham Lincoln and the Republicans campaigned against allowing Dred Scott to stand. Once in office, Lincoln and the Republicans added a Supreme Court justice to decrease the power of the South on the court.
“If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln said in his first inaugural address, then “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Over the last year, as the movement for reform has grown, a handful of progressive law professors have begun to proselytize a point akin to Lincoln’s: that not only is our current deference to the Supreme Court not rooted in the Constitution, but it also conscripts the American people to control by an institution that has never lived up to the ideal of pure, apolitical fairness.
Throughout America’s history, this cohort argues, the Supreme Court’s record has been undemocratic and non-egalitarian. It upheld the Fugitive Slave Law of 1850 and deprived Black people of citizenship in Dred Scott. After the Civil War, the court took a hatchet to new civil rights laws and hollowed out the 14th and 15th Amendments, allowing segregation and Black disenfranchisement. As the financial recession of the 1890s morphed into the Gilded Age of inequality and exploitation, the court came down on the side of corporations and against protections like child labor laws.
In the 1930s, the Supreme Court began to dismantle the New Deal, President Franklin Roosevelt’s response to the Great Depression. To save his agenda, Roosevelt determined to pack the court. His court-packing plan prompted major losses for his party in the 1938 midterms, but the court heeded FDR’s warning and stopped overturning New Deal programs. But for more than four decades now, the court has again privileged the rich and powerful while chipping away at the gains of the Civil Rights Era. Under Chief Justice John Roberts, the court has allowed unlimited outside spending in elections, knee-capped unions, and rolled back voting rights protections—changes to American democracy that once again privilege rich and white Americans over everyone else.
The exception to this history is the mid-20th century, when the Supreme Court finally repudiated the Jim Crow systems it had helped entrench and handed down multiple important civil rights and pro-democracy rulings. Roosevelt’s appointments, as well as those of Truman and Eisenhower, moderated the court. Thanks to this era, liberals in the last 50 years came to rely on the court as the vindicator of minority rights. Groups like the ACLU and the NAACP Legal Defense Fund used the courts to advance civil rights and won—training the left to view the court, not the elected branches, as the guardian against oppression, and propagating the ideal of an impartial judiciary that rises above the political fray.
In Kang’s telling, this is when the left and the right diverged: The left bought into the myth of an apolitical judiciary just as the right—angered by the court’s support for civil rights and abortion access—decided to capture the court and bend it to its political will. So the left disarmed itself and the right captured the courts, culminating in Amy Coney Barrett’s confirmation a week before the 2020 election. “I was part of the same legal elite culture that convinced myself that holding the line on an apolitical judiciary would strengthen our courts,” he told the Presidential Commission on Supreme Court Reform last year. “I am here to admit that I was wrong.”
To Kang and Lipton-Lubet, the court’s apolitical sheen is a dangerous myth, lulling liberals into complacency. Wipe away this gloss and court expansion becomes the obvious remedy to the court’s rightward lurch: It’s immediate, and it’s indisputably constitutional. Congress changed the size of the court six times before 1870, including three times between 1863 and 1869 in order to keep the court out of the hands of southerners sympathetic to slavery.
But some reform advocates say that court expansion is not enough. A small group of academics argue that it is a temporary fix to a bigger problem for American democracy: ceding political power to a court that will always, in the end, support the powerful over the vulnerable. “The ideal would be not to have a rerun of the last century where we get control of the courts only to see them captured by our enemies and used against us,” says Yale legal historian Samuel Moyn. “That’s what happened to the liberals in the 20th century. And why redo it?”
Last fall, Doerfler and Moyn argued in a California Law Review article that changing the court’s makeup was a superficial reform to an institution that is structurally antithetical to progress because it’s made up of unelected and unaccountable elites. (Arguably, the court has often opposed minority rights because, until recently, it has been a white, male court generally far removed from the experiences of most Americans.) They argued that instead, the court should be disempowered through “jurisdiction stripping”: Congress limiting the scope of what the court can review.
This could be done comprehensively in one bill, or piecemeal through attachments to individual bills. For example, multiple House Democrats have called on Congressional leaders to add such a clause to the Women’s Health Protection Act to reinstate abortion rights; if the bill passes with a jurisdiction-stripping clause in place, the Supreme Court would be powerless to strike it down (unless the court defied Congress and did so anyway, resulting in a constitutional crisis). This piecemeal approach, if added to multiple bills in the coming years, could be the most immediate, if gradual, way to diminish the court’s authority. Its appeal to its proponents is that it redistributes power from the court to the elected branches of government which, Doerfler and Moyn argue, have demonstrated more dedication to political equality throughout the country’s history, while the Court has always returned to its oligarchic roots.
Between expansion, term limits, and the jurisdiction-stripping, advocates have options that are firmly rooted in the Constitution. But the feasibility of reform in the coming years will disappear if Republicans take control of Congress in this year’s mid-term elections or the presidency in two years.
“If Republicans win control of Congress or the White House, it will be in part because the Supreme Court intentionally and illegitimately helped them do so,” Lipton-Lubet says, referring to the court’s many election-related rulings. Left unchanged, the court will continue to uproot the legal foundations of modern life, as it also disempowers the party that may one day decide to rein them in.
“We’ll do everything we can to educate lawmakers and the public about that reality because the more people understand that the Supreme Court is little more than the legal department of the Republican National Committee, the more clear the need for reform will be.”