Expand the Supreme Court and Preserve Democracy

 By Mildred Robertson

Many Americans watched in disbelief as former president Donald J. Trump broke almost every rule established to define the boundaries of presidential power. While Democrats attempted to hold Trump accountable for his myriad infractions, on two occasions the Republican-led Congress failed to discipline the twice impeached president. Trump’s blatant disregard for the Constitution resulted in norm-busting practices which, if left to stand, may signal a failed democracy.  While both the executive and legislative branches of our government were obviously faltering, Americans maintained hope as the judicial branch continued to safeguard our democracy by ruling in favor of constitutional norms. Many courts across the country continue to stand on the watchtower to protect our freedoms…but not all.

 

As chaos overtakes every part of the American political system, the Supreme Court is the final leg of our government to buckle under the weight of partisan politics. The nation’s foundation has been shaken by this week’s revelation that Supreme Court Justice Clarence Thomas may have based his judicial decision on the release of records to the January 6^th Committee on the involvement of his wife in the planning and execution of the January 6^th insurrection.  During a Capitol news conference on March 31, 2020, House Speaker Nancy Pelosi, D-Calif, called for a code of ethics for the Supreme Court stating, "If your wife is an admitted and proud contributor to a coup of our country, maybe you should weigh that in your ethical standards."

 

The Founders constructed our constitution with a series of checks and balances designed to ensure that one flawed branch of government would not be able to undermine our democracy. In theory, each branch is endowed with individual powers to check the other branches and prevent any one branch from becoming too powerful. In 2022, that theory seems to be failing the test. It appears our U.S. Supreme Court may be the latest casualty of partisan politics to foreshadow our nation’s possible demise.

 

The Supreme Court, the highest court in the land, is the final arbiter of constitutional issues with which this country must grapple. While bills passed by Congress must be signed by the president, Congress still has the power to override a presidential veto, resulting in a balance of power. However, there is no power above the Supreme Court to call its actions into question. Justices have a lifetime appointment meant to insulate them from partisan influence. However, they can also become insular, making decisions to please themselves rather than to protect the constitution.  

 

The Court has, in the past, been made up of individuals who leaned either left or right, but who could be persuaded by the facts of a particular case based on the constitution. These swing votes provided for a more fair hearing of controversial issues that came before the court. However, then-Senate Leader Mitch McConnell has manipulated Court appointments by denying both President Barack Obama and President Joe Biden the opportunity to fill Supreme Court vacancies. In 2016 he refused to bring Obama’s nominee Merrick Garland to a vote, even though there remained 8 months in his presidency. Likewise, he rushed through the nomination of Amy Coney Barret only weeks before Biden’s election in order to deny him the opportunity to fill the seat of Ruth Bader Ginsburg who passed on September 18, 2020. These ideologues carry the banner for far-right issues such as anti-abortion and other conservative standards. In addition to a Court packed with rightwing enthusiasts, we now have a justice who seems to overlook rules of ethics in his decision-making.

 

Whether Clarence Thomas recuses himself from cases surrounding January 6^th, at this point, is left up to no one but him. However, there is something that can be done to restore the balance of power on the highest court in the land.  Congress has the power under Article III of the Constitution to add seats to the Supreme Court. This is not an unprecedented move. The size of the Court has changed 7 times in American history. There should also be an effort to depoliticize the Supreme Court by creating term limits. This would give each president the opportunity to appoint justices each term, thereby making it more representative. Finally, the Court should be held accountable by instituting a binding code of ethics that requires recusal in cases of proven conflicts of interest.

 

In a blog post written in 2019, I said: “America stands at a crossroads. As the President of the United States engages in an all-out attack on this nation’s constitution, it occurs to me that the boundaries of our constitution are being challenged. We are about to witness whether our constitution, as framed by our Founding Fathers, can withstand the onslaught of a lawless president.” Little did I know at that time that those challenges would lay as well at the feet of our legislature and our Supreme Court!  Unprecedented challenges to all three branches of our government threaten the very democracy that makes us unique among nations.  We must fight to maintain our democracy. We must fight to ensure our government works in the manner the Founders intended. To that end, we must expand the Supreme Court to restore balance, and preserve our nation.