Progressives are taking the idea of reforming the Supreme Court seriously. Late last month, Democrats revealed they are planning an election platform that calls for “structural court reforms.” And no wonder—Democrats are unhappy with the Republican capture of the judiciary: Donald Trump has stocked the federal bench with conservative judges and, at the very top, all but guaranteed a clear conservative majority on the Supreme Court for decades to come—a severe threat to any progressive legislation in the foreseeable future.
Democrats are reportedly being noncommittal about precisely how to proceed. According to The New York Times, one campaign official suggested that the platform language serves more as a values statement, not an indicator of specific changes or proposals. At this point, a vague statement is probably a good thing. For one, it indicates that enough Democrats saw through Chief Justice John Roberts’s strategic efforts late in this year’s term to sap energy from the Court-reform movement. Moreover, caught up in whether to champion “court packing” or reject it—as Joe Biden, their presumptive nominee for president, already has—Democrats have barely begun to discuss what kind of reform makes most sense.
There are two basic types of reform. One type adjusts the personnel of the Supreme Court by adding justices, choosing them differently, or shortening their terms of office. The second kind disempowers the institution itself—removing certain cases from its jurisdiction, requiring a greater number of justices to agree in order to interfere with democratic choices, or letting Congress override any glaring mistakes. As we argue in a new paper, this second brand of reform is best. The first sort of fix may serve the Democrats in the short term, but at the price of naked partisanship and possible blowback, while the second facilitates progressive ends and, just as important, reinvigorates American democracy.
Read more at The Atlantic