Leaving the nine-justice structure of the Supreme Court in the past would end the arms race of parties nominating justices.
On July 10, several weeks after Anthony Kennedy’s retirement and Brett Kavanaugh’s nomination, Roosevelt University political science professor David Faris wrote for the Washington Post a call for Democrats in 2021 to add more justices to the Supreme Court. The strategy, known as court-packing, dates back to President Franklin Delano Roosevelt. While Roosevelt failed at his attempts, Faris argues that Democrats succeeding in 2021 will be imperative to the survival of the American democracy.
With a conservative bench, the Supreme Court has the opportunity to overturn landmark cases such as Roe v. Wade and Obergefell v. Hodges (although the latter is unlikely) and set back social progress by nearly a century. Faris says that, by adding liberal Supreme Court justices, the new judges can prevent this irreparable disaster from occurring.
I agree; we need more justices to prevent tyranny from the judicial branch, especially from a conservative one. However, I do not believe Faris goes far enough. We need to add so many Supreme Court justices that the judicial branch becomes as deliberative as its legislative counterpart.
The underlying issue is that Faris’ strategy produces an arms race of nominating and appointing Supreme Court justices. As each president takes the office and nominates justices, an allied Senate will continue approving each nominee. How far are we willing to go? 15? 30? 100? While his methodology is sound, he misunderstands what he is arguing against. Instead of asking how we curb a conservative court, I’m questioning the underlying assumption that so few people should wield this immense power.
The current iteration of the Supreme Court should be blasted into the rubbles of history like every other outdated American political institution that we have overcome. The story of the American political experiment has been one of evolution, a transformation geared toward gradually adopting more democratic practices. Once an aristocratic republic, the United States has taken centuries to emerge from its original qualifications of white land-owning males; it took a war and a century to break the stranglehold of the South over the meaning of Black humanity, a century and a half for women to vote and the struggle continues over voter suppression and various American colonies.
The Supreme Court is the most powerful of the remaining anti-democratic institutions left standing from the Founders’ greatest mistakes. Nine people are charged with deliberating, formulating and making judgement on cases that not only possess the definitive stance on what is constitutional, but what is American. It virtuously adjudicated some of our greatest moments in Brown v. Board, Obergefell v. Hodges, Roe v. Wade, Gideon v. Wainwright, Worcester v. Georgia and Miranda v. Arizona.
However, the Supreme Court also established and perpetuated America’s greatest moral failings in Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, Kelo v. City of New London and Citizens United v. Federal Election Commission. Nine people, who have been predominantly white, male and rich, have determined the soul of our nation.
I don’t meant to say that it is impossible that nine people can definitively determine and rule on the public good in the United States; I’m arguing that, thus far, they have screwed up catastrophically and allowed hundreds of thousands to suffer for decades before fixing their mistakes, all under the guise of precedent. The stakes cannot be higher, and pretending that presidents choose the wisest, most scholarly and impartial Americans to the highest court in the land to make these decisions is not only laughable but inherently flawed from its mechanical assumptions.
I’m going to ruin Nietzsche for every edgy pseudo-philosopher out there: there is no ubermensch, no human being so perfect they could justify the Supreme Court’s limited power. Humans are so much more than an amalgamation of knowledge and degrees from Ivy League schools; they are individuals filled with unique experiences that cannot be categorized into neat boxes. In the same way I will never be able to fully appreciate Justice Sotomayor’s extraordinary life, she can never understand my journey as a half-Thai millennial, born on Saipan and living as a student in Tulsa, Oklahoma.
Democracy infuses your story into a conversation of how we rule ourselves and each other. This is not something, regardless of how brilliant its members, the Supreme Court can ever facilitate and actualize on its own. The democratic process is slow in the United States, and others have argued that without the Supreme Court segregation might have never ended or the legalization gay marriage would not have been realized. But through a more responsive, non-gerrymandered Congress, or even a direct public referendum, segregation would have never happened in the first place; the South simply lacked the numbers in 1896 like it does today. Gay marriage, under this same token, would have passed with a national vote in 2015, if not earlier; most of the homophobic prejudices of the Greatest Generation and the Baby Boomers are dying along with them.
While democracy can be frustratingly inert, especially in the American constitutional system, it means we produce right or wrong decisions together. No one should be able to steer us without our consent. When nine partisan and biased people can determine that an integral part of you prohibits your participation in the noble pursuit of living as a free being, the Supreme Court fails the democracy it is sworn to defend.
The United States has an opportunity to reassert itself as the world’s mightiest and most successful democratic experiment in history by admitting its most unsettling truth: most of the Founding Fathers were nothing more than a conglomeration of male, rich, white aristocrats who created a government of, by and for that demographic. The Supreme Court stands as an enduring testament to their political and social shortcomings, and packing the Supreme Court with more justices injects a collaborative element into the most tyrannical branch of the United States.