The Supreme Court is a political institution.  It makes major, politically contentious policy decisions, and it makes them along partisan lines.  These observations should be non-controversial, but they weren’t always obviously true.  Earl Warren was a Republican politician, but he led the most progressive Court in our history.  Another appointee by a Republican president, Harry Blackmun, wrote the majority opinion in Roe vs. Wade.  Robert Jackson, Anthony Kennedy, David Souter and Sandra Day O’Connor were other justices whose behavior on the court couldn’t reliably be predicted by their partisanship. Those days are no longer.  We live in an age of polarization, an age that will be with us for a long time.  The political decisions of the Court—and yes, let’s call them political when that’s what they are—reflect and will continue to reflect that polarization.  They will continue to mirror the partisan and ideological makeup of the Court. The big problem is that the partisan and ideological makeup of the Court has no necessary relationship to recent election outcomes.

So, we have consequential political decisions being made by a non-elective body unmoored from democratic accountability. That is simply unacceptable in a democracy.  A president who was twice elected with popular vote majorities got to put two justices on the Court, while a president who never won even a plurality of the popular vote was able to install three.  There is no better way to say it: that is just fucked up.

These thoughts, needless to say, are prompted by the recent Court decision effectively to allow Texas to suspend Roe vs. Wade.  In passing on a Texas law that is as ridiculous as it is outrageous, the majority on the Court implicitly aligned themselves with anti-abortion  extremists.  We can reasonably surmise that the same justices will be happy to strike Roe down next Spring, given the opportunity presented by a case now before the Court. That a majority of Americans oppose such a course will be only a minor and almost surely insufficient deterrent. Nor will it deter Republican legislators in other states already aiming to follow Texas’s lead.

What is to be done? President Biden has promised an all-out federal effort to protect women’s reproductive health rights, but it’s not clear just what the feds can really do.  I hope and expect that some enlightened billionaire will start a fund to pay the transportation expenses of women who have to travel out of state for abortions, and I will gladly contribute to that fund. But politically, what can progressives do?

First of all, the left needs to make the case forcefully that the Supreme Court’s legitimacy is in crisis, a crisis engineered by Mitch McConnell and Donald Trump.  Accordingly, we have to make Court reform a major piece of the progressive political agenda.  The campaign for Court reform should run along two tracks: Court enlargement (yes, that’s a euphemism for Court-packing) and Court disempowerment. Either track if successful might be sufficient, but both  need to be pursued.  I have no illusions about early political success for either, but this is a battle for the long haul, and now is the time to get started.

There is nothing magical or sacrosanct about the number nine.  We need to push for the addition of six new justices in order to break the radical right’s grip on the Court.  (Four would be adequate but the number 13 is probably a no no.) There is nothing illegal or unconstitutional about this proposal; Congress has changed the number of justices several times in American history. In principle, 15 is just as good a number as 9.  To the argument that this would be a too blatant political power grab I would simply respond with two words: Mitch McConnell. The power has already been grabbed; it’s a question of undoing what has already been done. Why is it that only Republicans get to play hardball? The real question is how this proposal would play politically.  I don’t know, but I think that the impending demolition of Roe will give it a lot more traction than it would have had, say, two years ago.  We can expect that the Democratic establishment, led by the president, will initially shun this proposal. It has no realistic chance for success in the foreseeable future. Still, the argument needs to be made if only to advance the idea that the current situation is unacceptable. Sometimes a forceful push for unrealistic demands can help make political space for more practical ones.

The second track for Court reform, Court disempowerment, is potentially more promising, but also more complicated. In 1982 a young lawyer in the Reagan justice department wrote several memos proposing limits on the power of the Court, arguing that Article III of the Constitution gives Congress the authority to restrict the Court’s powers of judicial review. The lawyer, one John Roberts, made a strong case, but his proposals didn’t go anywhere. Roberts was largely reacting against Roe vs. Wade. Today, lawyers with dissimilar motivations from Roberts’s are making similar arguments. Most proposals for court disempowerment (not limited to the Supreme Court) fall in the category of jurisdiction stripping, which means restricting the areas in which courts are allowed to overturn legislation. Although not as obviously pointed as Court enlargement, disempowerment would also run into stiff Republican resistance, and would probably have little chance of passage as long as the filibuster rules the Senate.  Even if significant disempowerment legislation were passed, it would run into the very Court whose powers it seeks to limit. Still, it must be tried.

The alternative to success along one of these two tracks is a Supreme Court dominated by the radical right for the next generation.  A Court that threatens not only abortion rights, but much of the agenda of any Democratic president.

Court reform is a long-term objective, but its promotion could conceivably aid the more immediate struggle for abortion rights.  If the court reform movement gathers enough political steam, it might–just might–convince one of the radicals on the Court that maybe it isn’t such a good idea to trash Roe—that the Court’s legitimacy is at stake, and the anti-abortion cause isn’t quite worth that cost.  I think that such a “switch in time”* is unlikely, but not impossible, which is another reason why it is so important that the women’s movement, and progressives generally, begin mobilizing now for Court reform.

*  FDR’s court packing scheme failed, but the threat did apparently induce changes in some justices’ behavior—the “switch in time that saved nine.”

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