Democrats Looking to Strike Back at Supreme Court
Impeach the Justices! Pack the Court!
Courthouse News Service (“‘An assault on American democracy’: Democrats vow action after SCOTUS rules for broad presidential immunity“):
In the hours after the Supreme Court ruled Monday that presidents, including former President Donald Trump, cannot be held criminally liable for official acts, Democratic members of Congress issued grave warnings for what the high court decision could mean for democracy.
Lawmakers accusing the court’s conservative majority of carrying water for Trump even suggested legislative action was on the way to hold the justices to account.
[…]
Senate Majority Whip Dick Durbin, who as chair of the Senate Judiciary Committee has accused some of the high court’s justices of acting on the whims of conservative legal activists, slammed the decision as awarding not only Trump but also all future presidents legal cover to abuse the levers of power.
[…]
Representative Alexandria Ocasio-Cortez, who sits on the House Judiciary Committee, said she would file articles of impeachment next week when lawmakers return from their Independence Day recess.
“The Supreme Court has become consumed by a corruption crisis beyond its control,” she said. “Today’s ruling represents an assault on American democracy. It is up to Congress to defend our nation from this authoritarian capture.”
Congress has the power to impeach justices of the Supreme Court — but it was unclear Monday who exactly Ocasio-Cortez would try to remove. Under House rules, the New York Democrat could bring articles impeachment up as a privileged motion, forcing a vote on the move even in the Republican-controlled chamber.
Axios (“Democrats vow to get ‘aggressive’ with SCOTUS after Trump ruling“):
What they’re saying: House Minority Leader Hakeem Jeffries (D-N.Y.), in a statement reacting to the ruling, said House Democrats “will engage in aggressive oversight and legislative activity” in response.
- The aim, he said, will be to “ensure that the extreme, far-right justices in the majority are brought into compliance with the Constitution.”
- Rep. Dan Goldman (D-N.Y.) said it is “incumbent upon the Legislative Branch to preserve the constitutional foundation of our democracy as three co-equal branches of government.”
Zoom in: House Democrats are proposing a variety of Supreme Court overhaul measures — all long-shots, especially given GOP control of the House — in response to the ruling.
- Goldman pressed House Speaker Mike Johnson (R-La.) to hold a vote on his bill establishing an independent ethics counsel for the Supreme Court.
- Rep. Bonnie Watson Coleman (D-N.J.) floated expanding the court and passing a binding code of ethics, while Rep. Hank Johnson (D-Ga.) called to pass term limits for justices.
- Rep. Joe Morelle (D-N.Y.) said he will introduce a constitutional amendment to “reverse SCOTUS’ harmful immunity decision and ensure that no president is above the law.”
Newsweek (“Democrats Move to Expand Supreme Court After Trump Immunity Ruling“):
In a statement responding to the court’s ruling, House Minority Leader Hakeem Jeffries said House Democrats “will engage in aggressive oversight and legislative activity with respect to the Supreme Court.”
The aim will be to “ensure that the extreme, far-right justices in the majority are brought into compliance with the Constitution,” he said.
Rep. Hank Johnson, of Virginia, called on Congress to pass legislation that would expand the court from nine to 13 justices, as well as other legislation that would require justices to adopt a binding code of conduct. The judges adopted a code of conduct last year following sustained criticism over undisclosed gifts and trips to some justices, but it lacks any means of enforcement.
“This ruling, and this session of the court, has been brutally assaultive on democracy and the rule of law, and we must expand the court and pass term limits to protect what constitutional order remains intact,” Johnson said in a statement in response to the immunity ruling.
Johnson “has been calling for court expansion well before this latest ruling on immunity,” a spokesperson for the congressman told Newsweek. “Wealthy special interests have corrupted the Republican supermajority on the Supreme Court—making it unethical and unaccountable. Now those special interests are getting what they paid for: a Supreme Court majority that protects the wealthy and powerful, while taking away rights from everyone else. We need to reform the Supreme Court, so it protects the rights of all Americans by reducing the influence of wealthy, special interests.”
Expanding the court is needed “to immediately change the court’s makeup in a way that reduces the power of wealthy special interests and restore balance,” the spokesperson said.
Rep. Bonnie Watson Coleman, of New Jersey, said lawmakers “must take all available measures to reign in the increasingly unfettered power of this radical court, including a binding code of ethics and expanding the number of justices.”
She said that six people “who were never elected cannot be allowed to continue destroying our democracy.”
The court is “beholden to right-wing groups and the billionaire mega-donors that fund them,” Minnesota Senator Tina Smith wrote on X, formerly Twitter.
“The Supreme Court is broken. The remedy is clear. Expand the Court.”
As a practical matter, all of this is posturing, at best.
The Justices in the majority broke no law and, indeed, aren’t accused of violating the law. Granting that impeachment is ultimately a political process rather than a criminal one, there’s nothing like a House majority to impeach, let alone a two-thirds supermajority in the Senate for removal.
Packing the Court would be much easier but, again, isn’t going to happen. The Constitution clearly gives Congress the power to set the size of the Supreme Court and, while 9 has been the custom for most of our history, it’s not set in stone. But the House has a slim Republican majority and I can’t imagine a single one voting for the measure. Passing it in the Senate would require eliminating the filibuster and getting Joe Manchin and Kyrsten Sinema on board; that’s not happening.
Alas, we’re at the point where the Supreme Court is at risk of illegitimacy. Before this term even began, a narrow majority (54%) of Americans had an unfavorable view of the institution. More importantly, there is a wide partisan gap in the perception, with Democrats overwhelmingly viewing it as a partisan institution.
“How much do you trust the Supreme Court to operate in the best interests of the American people?” only 53% said “a great deal” or “fair amount,” down from nearly 70% in 2019. But there is now a stark contrast between those of each major political party. Only 39% of Democrats said they trust the court a great deal or fair amount, while 72% of Republicans did — a 43% gap.
That gap will certainly grow after recent rulings.
I’m not a partisan these days and am less outraged by the rulings than many of the commentators here. But even I find it harder to see them as based on honest jurisprudence rather than motivated reasoning. Unlike many commenters, I don’t see the Republican-appointed Justices as pro-Trump activists or in the pockets of plutocrat benefactors.* Rather, as alluded to in my earlier post, “Presidential Immunity and the Catch-22 of American Politics,” I see them as having an almost academic view of the law detached from the realities of governing a modern state.
Regardless of outcomes, I’ve believed the Supreme Court too powerful as long as I’ve paid attention enough to have an opinion—some four decades now. The fact that we’ve gotten to the point where partisans are trying to convince even relatively young Justices to time their retirement so that a President of the same party can replace them—much less refuse to allow the opposite-party President to appoint them in an election year—demonstrates the degree to which the makeup is seen as existential.
*But, of course, the fact that some of them have wealthy benefactors naturally invites that perception.
I might accept “ideological” or even “philosophical” but “academic” gives too much intellectual credit.
@Steven L. Taylor: Fair enough!
As noted almost four years ago in “Was I Wrong on Harriet Miers?,” I’ve come to think that at least a few Justices ought to have practical experience in government. The war on the administrative state, for example, only makes sense if you don’t understand how wildly different governing a modern state is from the status quo 1787. (Although Thomas actually had a little time in government before his appointment.)
Alito, Gorsuch, Kavanaugh, and Roberts also worked in the Executive Branch for Republican administrations, correct? The lone Republican-appointed justice who dissented on a key part of the opinion (“the jury must be allowed to hear about both the quid and the quo”), Coney Barrett, has no such partisan administration experience.
Yet.
I won’t be Trump’s and Biden’s age for many decades yet. I opposed expanding this court until yesterday, but the looney tunes hackery of the Roberts Court is too offensive to let slide.
May take a while to build the voting coalition that can fix this problem, but gotta start somewhere.
@DK:
I love ambitious, intelligent youngsters like you. 😀 Seriously–they give me hope.
The Trump-appointed Justices all lied in their confirmation hearings. I would love him to very publicly use the Justice Department to investigate and indict them for perjury.
I don’t think the charges would stick, as it would be nearly impossible to prove that someone didn’t change their mind on the value of precedent after getting to the court, but harassing the people who caused this would still be worthwhile.
Some people need to learn lessons about (sigh) unchecked executive power through direct personal experience.
I don’t think Biden has the “be a little bit authoritarian to force safeguards to be established” mindset though.
@DK:
The big problem is there’s no mainstream push to pack the court or much in the way of overall judicial reform.
I am aware of the legislative hurdles and other obstacles, but that comes only after there is some move to actually address the problem. Consider how long the matter of healthcare and health insurance reform was a mainstream issue (and still is).
Or take junk fees. While many people were dissatisfied with them, the matter gained no traction until Biden made it an issue.
and thus far, few are pushing for fixing the court, even though there’s widespread dissatisfaction with it.
If you meant to say “wealth”, no, that ain’t what leads to a perception of corruption. If you were about to say “wealthy benefactors”, why yes, that’s perceived as corruption, because it IS corruption.
Congress has the power of the purse. They should use it.
I was recently reading some econ history talking about the fairly brief reign of monetarism, a concept that, in it’s pure Friedmanesqe form, economists no longer take seriously. May one hope the Courts recent entirely consequentialist decisions will hasten Originalism becoming a quaint curiosity. Something which historians will be dumbfounded anyone believed.
@gVOR10:
It may be that justices like Thomas are straight up doing favors for the patronage. But I find it far more likely that those benefactors like to buddy up to Thomas (and other highly influential people) because the more time they spend with him, the more he identifies with them and their worldview. And I perceive that worldview to be crazy town, like “what if we made it unconstitutional to have any gun law that was not on the books in 1789?” Yeah, that’s the ticket.
I think someone needs to break into the supreme court building, and remove all the copies of the Constitution marked in black Sharpie.
@James Joyner:
You persist in framing this as if there were some kind of philosophical or analytical difference of opinion going on — that “conservatives” have one theory of jurisprudence, while the “liberals” have a different one. There is no evidence that this is the case — and a great deal of evidence that what is actually happening is that the court has been stuffed with hacks who will rule however their Federalist Society bosses want them to rule, and invent a laughable “legal analysis” to support that decision. The fig leaf has been dropped, trampled, and burnt.
@Joe: I would be totally cool with it being unconstitutional to have any gun law that was not on the books in 1789, provided that you also could not possess any guns that were not available in 1789.
@DK: It’s possible that “not yet”==”not ever.” If, as was argued in a previous post, Democrats are not the types of people who will embrace a demagogue of the Trump sort, they may well also be people who will not embrace the sort of naked power grab that packing the Court would represent. It’s possible that Democrats never were/aren’t anymore a “by whatever means are necessary” cohort.
@just nutha:
By the time most people realize they must do whatever it takes, it takes a lot more than it would have earlier.
I’m sure Lincoln and Grant did not want to wreak havoc and destruction on the South in 1860, nor did Roosevelt, Churchill, and Truman have any desire to firebomb Dresden and Tokyo, or wipe out Hiroshima and Nagasaki all the way back in 1936.
By the time they got there, that was what it took.
I can’t see what Lincoln might have done to keep the Union together without a major war. On the flip side, it’s entirely possible that a strong response to several German moves might have resulted in the downfall of the nazis, and might have avoided a war in Europe (a war in the Pacific was a different matter).
the latter is highly uncertain. All we know is what actually happened, not what might have happened. And all we can conclude is appeasement failed miserably in the late 1930s.
James, they are unelected. Unaccountable.
There is a solution, several of them in fact, but you are afraid to utter their names.
@DrDaveT:
The conservatives do have, or at least claim to have, a different theory of jurisprudence, “Originalism”. However, Originalism was designed to a) allow desired outcomes via the historical Calvinaball we’ve seen, while b) allowing a claim to be the one true method, justifying the wholesale trampling of precedent we’ve seen. They can claim they are just following a neutral theory of jurisprudence to whatever results it produces, as James seems to believe. But they’re lying, they designed the process to produce the desired outcomes.
@just nutha:
I said expand the court, not pack the court. The Supreme Court was not originally nine justices, it has expanded before. It was not a “naked power grab” then, need not be in the future, in some yet-to-be-determined process.
As to the rest, I would rather be dead than a slave, so yes, by most means necessary I will not be a slave to an American Hitler. I’m guessing most of my peers feel the same. We’re not interested in the asymmetrical warfare bit, where Democrats have to “go high” and play by the rules while unconstrained, norms-breaking Republican extremists run amock.
So not yet means not yet. Change takes time. It may take years or decades, but we have plenty of it. In the mid-90s, only 25-30% of Americans supported gay marriage. Now gay marriage is legal nationwide with 65-70% of Americans in support. Neither a Democratic demagouge nor a “naked power grab” was necessary to get the job done there either.
@Joe:
And it appears Leonard Leo recruits “benefactors who like to buddy up” and introduces them to justices. The empty seat that happened to be available to Alito on Paul Singers jet? Leo made the arrangements for the trip. And Singer only provided the seat, one Robert Arkley II paid for Alito’s lodge charges. Leo, Ginny Thomas, and Harlan Crowe go back a long way, with considerable cash flow. And those discussions are more along the lines of how regulation is hurting entrepreneurs and AGW is unproven. They all are, or are advised by, high power lawyers. There isn’t going to be any provable quid pro quo. It’s loyalty to a class and to a philosophy that’s being bought, not some crass zoning vote.
These billionaires handle the justices on behalf of the FedSoc. They’re volunteers, but nonetheless handlers.
Well, this probably seems crazily mild in comparison with what some are saying, but I think the fundamental issue is that this Court has lost any public sense of its good faith with the public, and particularly with Democrats. “Motivated reasoning” is a good description. They’ve tossed over stare decisis. They’ve abandoned originalism, which quite recently was their pillar of principle. If you don’t hold to a principle when that principle stands in the way of what you want, it was never a principle, just an argument of convenience. They recognize no principle except “we win”.
They have lied their way on to the court, and displayed anything but a detached non-partisan demeanor.
Of course Democrats don’t have confidence in their good faith. Who would?
@gVOR10: Yes, I left out “benefactors.” Fixed now. Unless there’s a quid pro quo, it’s not corruption. But it sure as hell looks bad.
@DrDaveT: The Federalist Society exists to, among other things, groom future Republican judges to ensure that they don’t, as so many others had, drift to the left once they get on the bench. There’s no evidence that they are “bosses” on the Justices once appointed.
My perverse mind came up with a perverse idea while walking in the woods this morning. The Constitution states that a Federal judge’s salary may not be reduced while he/she is in office. Very well. Double the salary of all justices, but expunge all funding for Supreme Court law clerks, security personnel, basically everyone except the janitors. Also delete all funding for operation, maintenance, and upkeep of the SC building. With salaries being doubled, all the justices can afford to hire their own law clerks and rent their own office space.