Court Packing? To Truly Reform the Court, We Must Vote

By: Austen Wyche

During the 2020 United States Presidential Election between incumbent President Donald Trump and former vice president Joseph Biden, one topic remained prominent in the news. Following the death of Justice Ruth Bader Ginsberg, the Republican Party hypocritically pushed through the nomination of Amy Coney Barrett to succeed Justice Ginsberg. Due to the immorality of the decision to replace Ginsberg with an ideological opposite, many in the left-wing of the Democratic Party have called for the expansion and reform of the Supreme Court. In 1937, under the presidency of Franklin D. Roosevelt, a court-packing plan was considered which would allow every President to appoint up to 6 Supreme Court Justices for every member of the court older than 70. Since the Constitution does not specifically outline the number of justices on the Supreme Court, the Executive Branch (President) has the ability to appoint additional justices so long as they are confirmed by the Senate. While the plan of Franklin D. Roosevelt was rejected, talks of court reformation have continued. Some members of the Democratic Party may be in favor of court-packing, but this is likely not a good idea.

In 2016, under the Obama Administration, Justice Antonin Scalia died in February, granting the President the authority to appoint his successor. When President Obama appointed Federal Judge Merrick Garland to take his place, the Republican Party stalled the nomination, claiming that the American people should have the “decision” in the upcoming election rather than the incumbent President making that choice. Mitch McConnell and conservative members of Congress stated they were giving the American people a choice, but this could not be further from the truth. The date that President Obama nominated Garland was March 16th, 2016—236 days before election day. Yet after the death of Ruth Bader Ginsberg during the Presidency of Donald Trump, all defenses of their conduct in 2016 went straight out the window. Forty days prior to the 2020 Presidential Election, Republicans stated that they would confirm Amy Coney Barrett to the Supreme Court on September 26th, a date vastly closer to the general election than when President Obama announced the nomination of Merrick Garland. The average time for a Supreme Court nomination is usually upwards of 67 days, but the former President and Senate had no regard for the process at hand. President Trump did and does not care about the voice of the voters, just that he can secure a conservative supermajority on the Supreme Court to rule in his favor on issues such as abortion (overturning the landmark case Roe v. Wade), rolling back environmental regulations, and eroding protections for immigrants (Regents of the University of California v.s Department of Homeland Security). This was precisely the mission of the former President to appoint Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court; all to roll back the rights of American citizens and protect the dying idea that conservatism is compatible with progress. To stop the minority Republican Party from taking away our rights we should not pack the court, but vote.

Ruth Bader Ginsberg was a pioneer in the fight for women’s rights, environmental protection, LGBTQ+ justice, and more. Casting key votes on decisions to uphold abortion rights and legalize same-sex marriage, Ginsberg was truly an American hero. To say the same about Amy Coney Barrett would be the opposite. The judge has signed opinions calling for the overturn of the Patient Protection and Affordable Care Act, Roe v. Wade, and produced court decisions blocking reproductive rights, the availability for immigrants to gain green cards, and gun safety policies. Amy Coney Barrett has provided the Republican Party a pipe dream of how the United States should be. Republicans have awarded Amy Coney Barrett with the nomination, without even considering the effects her service on the highest court of our land will have on the citizens of the United States. In one opinion, Coney Barrett insinuated the judicial view that the right to bear arms (the Second Amendment) supersedes the right to vote. Additionally, she ruled in a decision in 2019 to make it easier for people accused of sexual assault to challenge their proceedings. In history, Amy Coney Barrett is on the wrong side of almost every single issue that involves the protection of civil liberties and independence. By replacing Ruth Bader Ginsberg with Amy Coney Barrett, an individual antithetical to the values of Ginsberg, the Republican Party has truly committed a disservice to the American people.

While Democrats may disagree with the nomination of Coney Barrett, in the words of Donald J. Trump, “elections have consequences.” Many Democrats and Independents stayed home in 2016, either not voting or with many voting for third-party candidates such as Jill Stein and Gary Johnson. There was a Supreme Court seat up in that election, so by sitting out in the election, the voters risked many issues that would eventually go to the court, such as immigrant rights, the census, death penalty cases, and more. Particularly, the turnout for Democrats in major cities significantly decreased. To prevent people like Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett from being nominated and confirmed to the highest court of the land, Democrats, Independents, and Republicans who care about civil liberties and rights need to vote. Even prior to 2016, critical Senate elections were up in 2014 and 2010, and many Democrats stayed home. In 2010, Republicans won back the House of Representatives (63 seats), six governorships (29/50), and 19 legislative chambers in state houses and senates, allowing them to enact harsh laws on issues such as criminal justice, gun safety, and abortion rights. In 2014, Republicans won back the Senate (54 seats), 13 House seats, 2 more governorships, and an additional 10 state legislative chambers. While the candidates in no election will be perfect, staying home is simply not a viable option, and it has real world ramifications. To not vote is a privilege. There are fundamental rights and decisions that are being made: environmental protection, racial equity, immigrant justice, and much more at the Supreme Court. When you make the decision to stay home, please consider what the impact of your action will have on other people. There are people who have faced systemic oppression, women losing their rights, Native Americans losing their land, immigrants in fear of deportation—staying home does not help any group, except those trying to retain their power. Choosing not to exercise the fundamental right that so many people have fought vehemently to acquire does nothing but maintain the status quo.

Since the number of justices on the Supreme Court can be changed by an act of Congress, court-packing would be a dangerous idea. When a new party takes control of the legislative branch, they could conform the court to their liking. To retain the integrity of the Supreme Court of the United States, there should be an absolute number. Term limits on the Supreme Court may be an issue up for debate, but it must be considered the sectional and partisan divisions that would result from this change. In the words of Ruth Bader Ginsberg, “ If anything, it [court packing] would make the court look partisan.” To truly make sure that Supreme Court Justices represent the values of America, first, we must reinstate the requirement that nominees receive ⅗ of Senator’s votes in Congress. Forcing a bipartisan confirmation will ensure that American people across a vast ideological spectrum will have a voice in choosing those who serve lifetime terms on the highest court in the United States, and in turn, ensure that our judiciary system reflects the democratic ideals that our nation was founded upon. In countries struck by authoritarian governments like Venezuela, their rulers have enacted court-packing plans. While a conservative 6-3 majority is extremely bad for America, constantly adding 3+ Justices to win political lawsuits and cases each administration would further tarnish democracy in the United States.

While in 2021, the Biden-Harris Administration has not announced a plan to pack the Supreme Court of the United States, President Biden has announced Executive Order 14023, which would establish a committee composed of a bipartisan group of court experts and analysts to determine the next path moving forward on court reform in the United States. Let’s be clear here: the current conservative majority on the court is an affront to democracy and progress in the United States. The Supreme Court currently has six members who were appointed by Presidents who were Republicans, and five out of six were appointed by Presidents who lost the popular vote in their respective elections (Alito, Roberts, Kavanaugh, Coney Barrett, Gorsuch). Since Amy Coney Barrett was confirmed to the Supreme Court in October 2020, the court has ruled that some immigrants in the country could not apply for permanent residency (Sanchez v. Mayorkas), limited the impact of the First Step Act, criminal justice legislation passed in 2018 (Terry v. United States), and upheld arbitrary Republican voting restrictions that outlawed ballot collecting and out-of-precinct voting (Brnovich v. Democratic National Committee). The latter case has extreme ramifications for Arizona voters and voters across the country by weakening the standard for proving discrimination under section 2 of the Voting Rights Act of 1965, even though the laws in Arizona were projected to harm the rights of Native American and Hispanic voters in the state. Due to this, it has become easier for Republican governments across the country to enact discriminatory voting laws, and harder for organizations such as Fair Fight Action, the American Civil Liberties Union, the National Association for the Advancement of Colored People, and the League of Women Voters to fight their attempts to circumvent our fundamental right to vote. By allowing President Trump and the Republicans to appoint these Supreme Court justices, civil rights and liberties in the United States are being attacked in real time.

As we have seen recently, the conservative Supreme Court has argued several cases, particularly on the issues of reproductive rights and gun safety. In Dobbs v. Jackson Women’s Health Clinic of Mississippi, the state of Mississippi is appealing a district court injunction on a law that would prohibit abortions after 15 weeks of pregnancy, a law that is in direct contradiction with the Supreme Court case Roe v. Wade (1973). Roe v. Wade was decided under the Burger Court, establishing that the “right to privacy” guarantees that individuals who can carry children have the right to abortion without excessive government regulation. Upheld by the case Planned Parenthood v. Casey, the right to abortion in the United States is generally allowed up to 20 weeks or viability (with exception of S.B 8 in Texas), when the fetus has the ability to survive outside of the womb. The Supreme Court heard oral arguments of Dobbs on December 1st, with most legal and court experts predicting that the conservative court would uphold the Mississippi law, with many stating that the court would overrule Roe v. Wade in its entirety and abdicate the right of individuals in the United States to receive an abortion. This is what the pro-life movement in the United States has planned for a long time, and now it is likely that they will succeed due to the conservative majority on the Supreme Court. If Roe is overturned, 21 states will likely immediately enact strict bans on abortion, and according to NPR, the right to an abortion would be immediately voided for 100 million Americans. By reversing Roe, the Supreme Court would not make abortion illegal, but allow states to determine the issue on their own, giving Republican politicians the opportunity to illegalize abortion procedures. It is projected that many would have to drive hundreds of miles in order to receive abortion care, which would hurt the most vulnerable in society, primarily women and gender non-conforming people of color, as well as members of the LGBTQ+ community. For example, individuals in Louisiana would be forced to drive a projected 666 miles just to receive abortion access with Roe overturned, a massive increase of the average 37 mile drive that exists today. However while it is likely that Roe will be overturned, there is a way for the American people to protect the right to abortion. Congress can codify abortion rights into federal law with the Women’s Health and Protection Act of 2021, which outlaws arbitrary bans on abortions, mandatory waiting periods, biased counseling, two-trip requirements, and mandatory ultrasounds that burden those that need access to reproductive care. In order to get this bill passed that will protect the right to abortion in the United States, we must vote in the 2022 elections for Representatives, Senators, Governors, and State Legislators that will work to pass legislation to protect reproductive rights and civil liberties, not take them away. By electing a Senate that will overturn the antidemocratic filibuster (over the objections of a minority of moderate Democrats and Republicans) and a House of Representatives that will uphold the rights of Americans, we can truly make the United States a country that promotes the rights of marginalized individuals.

In addition to cases on abortion, the Supreme Court this term will hear cases on gun safety and state regulations of firearms (New York State Rifle & Pistol Association v. Bruen), state funding of religious schools and educational institutions ( Carson v. Maken), and antidiscrimination protections in Obamacare (CVS Pharmacy Inc. v. Doe). Even though it is likely that the conservative Supreme Court will rule in a way that undermines the rights of Americans, the job of the Supreme Court is to interpret law. By electing a Democratic Congress with a solid majority in both bodies (not a 50-50 split as we have now), we can ensure that rights and liberties are codified into law. It is fundamental that we elect a Democratic Senate, as they are responsible for confirming Supreme Court Justices, appellate judges, and district judges who decide most of the cases that go through federal court and affect our ability to go to a restaurant without receiving discriminatory treatment, go to school without having to fear for our lives, or recieve the fundamental and constitutional right to an abortion. Voting in midterm elections is just as important- if not more important- than voting in presidential elections. Voting for your local legislators is very important, as these individuals will be deciding issues that affect citizens and residents in your state in all segments of life, from racial equity programs, voting rights, economic inequity, criminal justice reform, tax legislation, and more. State judges are important too, as these individuals decide on issues that go all the way to higher courts and have national ramifications. The overall point is that in order to reform the judicial system in the United States and protect our fundamental rights and liberties, we must vote. We cannot afford to sit out and allow our rights to be degraded and taken away. Do your research, and vote to protect our future.

"Our political leaders will know our priorities only if we tell them, again and again, and if those priorities begin to show up in the polls."

-Peggy Noonan

Edited by: The Teen View Team