Progressives desperately need massive structural court reform and they need it now. This is not a theoretical problem. Donald Trump’s takeover of the federal bench, coupled with conservative lower court judges emboldened to work quickly without need for any existing legal precedent, plus a looming clock ticking down to 2022 and the potential loss of Democratic control of the Senate, means that anyone interested in meaningful voting rights, LGBTQ rights, worker protections, the environment, or racial justice understands that unless big reforms come on short timelines even bold Biden initiatives do not survive the decade. It’s no wonder progressive court reformers were maddened both by Biden’s commission to study the court—which will take six months to report on legal questions some of its members have already been studying for decades—and again by last week’s legislative effort to expand the court, which was strangled on arrival by Nancy Pelosi the same day it was introduced. One need not be a master of history or parliamentary procedure to understand that the window for fixing a dangerously activist and unrepresentative Supreme Court is closing quickly.
It’s not surprising that many of those who best understand the need for court reform are the ones most frustrated by these halting baby steps. As Elie Mystal, my colleague Mark Joseph Stern, and Ian Millhiser all note, it sure feels like the people tasked with taking structural court reform seriously are doing the very opposite. But putting aside the pros and cons of swift and decisive court expansion, the persistent fury that the Biden Administration isn’t taking the onrushing tyranny of the Trump judiciary seriously may be missing one crucial factor: Court reform doesn’t come exclusively from changing the size and structure of the bench. It can also come informally, from the people exerting pressure on the current justices—and there’s good evidence that’s already happening.
Among the many unexplained mysteries of the current Supreme Court term, perhaps the greatest is the mystery of the court’s failures to take up major gun rights appeals, or a long-simmering 15-week Mississippi abortion ban that might be the perfect vehicle for a challenge to Roe v Wade. The conservative justices, who have—to be sure—tacked quickly and radically rightward on the court’s effervescent religious freedom docket, do so under cover of its shadow docket. But as Ariane de Vogue reported recently at CNN, the conservative legal movement that spent buckets of money and capital to seat Amy Coney Barrett is already feeling “disappointed and a little despondent” about her. The newest Justice is looking “timid” to them, and failing to take the bold actions they demanded. Among some conservative court-watchers the frustration is palpable about both the Mississippi abortion case and gun challenges, as was her refusal to join Justices Alito, Thomas, and Gorsuch in accepting a challenge to the presidential election results, an outcome that has left Trump furious with the court. As de Vogue writes, Barrett’s refusal to tack hard right in her early months at the court raises the possibility, at least according to one unnamed conservative source, that “the court would end up in a 3-3-3 lineup in some cases with the liberals on one side, and Chief Justice John Roberts, Justice Brett Kavanaugh, and Barrett in the middle and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas on the far right.”
This fractionally more moderate bump at the center of the current court has proved maddening for the conservative legal movement because it also contains the Chief Justice, John Roberts, who was a reliable fifth vote for business and against regulation, to curb voting rights, to expand religious liberty, to diminish reproductive and LGBTQ rights, and otherwise put into effect the Reagan/Bush conservative judicial wish list. And yet Roberts’ defections—they would say betrayals—in recent years, have piled up, first on challenges to the Affordable Care Act but more recently in June Medical, a seminal abortion challenge from last term. Roberts is not on board in the growing series of cases setting aside state COVID measures in favor of religious challengers. With the death of Ruth Bader Ginsburg this fall and the addition of Amy Coney Barrett soon after, Roberts went from being the essential fulcrum on a court split between 4 liberal and 4 very conservative jurists, to a choice between being the 6th conservative on a far-right court, or a dissenter. After years spent quietly steering the court, to the right, with incremental, sometimes invisible moves, with an eye toward protecting institutional prerogatives, the master of the long game ran out of track.
As Chris Geidner writes this week , the fact that Roberts has seemingly lost control of the court he controlled for so long is part of the reason court reform activists on the left have been emboldened to press for massive court reform: “This changed reality inside the court—in which five justices who seem ready, willing, and able to go further to the right than the chief justice himself—has also changed the reality outside the Supreme Court.” Geidner writes that the proposed legislation, introduced last week by Reps. Jerry Nadler, Hank Johnson, and Mondaire Jones, and by Sen. Ed Markey to expand the size of the Supreme Court from nine to 13 justices, is evidence of “how far the Roberts court has fallen off the tightrope he’s been leading his colleagues on for the past 15 years.” And while the Biden Commission to study court reform will be slow, and this proposed legislation is unlikely to produce concrete structural changes, the object here might honestly be both to push the issue into the public sphere, and—as Geidner notes—to put pressure on Roberts to keep the right flank of his court from doing anything crazy enough to add fuel to the fire.
As many a historian has noted, FDR’s unfulfilled threat to pack the court was itself a powerful driver of court moderation. And as Bill Scher points out, the specter of hastily added seats for Biden is one explanation for why the court still won’t touch the Mississippi abortion ban. It is possible, if not likely, that there are still enough conservatives on the current court who don’t want to invite progressive reformers to take a brickbat to the institution, to mean that in a sense “court reform” is already happening if you can define that term to mean progressive agitation and organizing on the issue that is already moderating the behaviors of individual justices.
It’s ironic that the sense on the left that radical change isn’t happening fast enough from outside the court is paralleled by the fear of the far right that radical change isn’t happening fast enough on the inside. The bad news for progressives is that if this really is a long game— one that will play out in years of a drip drip of slow decisions that chip away at the regulatory state and environmental protections, on voting rights and the rights of vulnerable groups—then this momentary burst of immobilized frustration on both sides will end in a win for the right. If the conservative jurists would only play the game Roberts’ way—incremental under-the-radar changes that engender only sporadic public attention—they could prevail in a five- or 10-year window. That is why the frustration and outrage on the right are short-sighted, whereas the frustration and outrage on the left are justified.
But here is where we slightly miss the point: It is this sustained and productive frustration on the left that is really new and, in theory, transformational. It signals that the court has become a big important issue. A progressive left that often sleepwalked through the Merrick Garland blockade and had no idea how to message the judiciary in 2016 is now wide awake and furious. New progressive groups are pushing a debate about the courts that lived for years only on academic panels. Liberals who were outraged about the norm-busting hardball around Garland, Kavanaugh, and Barrett, are not in fact waiting around for an adverse abortion or guns decision. They are energized about court reform right now and they aren’t waiting for radical decisions to demand change. (P.S. We are already seeing radical decisions.)
This isn’t by any means the solution to being consigned to live under the dead thumb of the Trump judiciary for the foreseeable future. But it’s a tactic, and a tactic that the conservative legal movement has deployed for decades: Talk about the courts, organize people around the courts, focus on the composition of the lower courts, and recognize that when the courts are way out of whack with the will of the people, the people can modulate them. I’ve long contended that the American public should treat the courts as we are advised to treat the occasional bears in the national parks: Act bigger than you are. Showing up, paying attention, agitating, and complaining about democracy-shrinking decisions are all ways in which the public can impact courts that seem otherwise immune from any public checking function. Of course, some form of large-scale structural court reform is needed, and needed now. But even when it feels like sweeping back the sea, there is still power in sustained public attention and focus. To be sure, it is maddening to contemplate that we are in this moment achieving a small measure of court reform based simply on the horrifying things the court is not doing this week. That’s a tiny win, but it’s absolutely a step in the right direction.