It's 2021. Why do we have a 19th-century Supreme Court?

It's 2021. Why do we have a 19th-century Supreme Court?
Image via US Court system.

Since 1869, the Supreme Court has had nine justices. In that time, the population of the U.S. has grown from 38.5 million to 332 million. Thirteen states were admitted to the union in that intervening 152 years. Women have gained the vote. The American population has become vastly more diverse, society far more pluralistic, and daily life far more complex thanks to innovation, technology, and a global environment.

Looked at through that lens, it's absolutely insane that anyone is clinging to the notion that there should not be a fundamental shift in how the highest court in the nation operates, since it has to deal with all of those vast changes in America every session. Since the Republican Party of 2021 would just as soon it was the 1860s (pre-Civil War, if they had their druthers), it's not too shocking that they're fighting fang and claw to keep the court as it's been for a century-and-a-half. Particularly since they've finally managed to get a reactionary majority established there.

The last time the idea of court expansion came up, it was 1937 and Franklin Delano Roosevelt—who had won a landslide victory in 1936—was dealing with a conservative court that was striking down critical initiatives in his New Deal agenda, hampering his ability to get the country out of the Great Depression. The court then, as now, had a majority of regressive reactionaries, making increasingly out-of-step and unpopular rulings. One case in particular helped tip the balance of public opinion, a case that has uncomfortable echoes in 2021: "[I]n June 1936, the court, by 5 to 4, struck down a New York state law providing a minimum wage for women and child workers. Laundry owner Joe Tipaldo, said the court, could continue to exploit female workers in his Brooklyn sweatshop; the state was powerless to stop him."

One historian, Alpheus T. Mason, wrote that this decision "convinced even the most reverent that five stubborn old men had planted themselves squarely in the path of progress." Sounds familiar, huh? At that point, FDR came up with a pretty ingenious plan: a new member of the court for every sitting justice age 70 or older, and a new appointment whenever a justice turned 70 and did not retire. That would leave not a set number of justices, but a flexible one. Of course, FDR's plan failed in one sense—he didn't get congressional support to enact it. However, the Supreme Court also began to support his New Deal legislation and even reversed itself, upholding the constitutionality of a minimum wage law in a case from Washington state in a 5-4 decision. Justice Owen Roberts was the swing vote in that case, and went on to protect FDRs New Deal policies in subsequent cases.

The situation in 2021 isn't all that different. We're in another crisis: the global pandemic. Republicans are as reactionary now as they were in 1937, and as out of touch with the needs of the people. There's another Roberts on the bench who might just be exerting a moderating influence on the court. Dalia Lithwick takes note of the "many unexplained mysteries of the current Supreme Court term," including "the court's failures to take up major gun rights appeals or a long-simmering 15-week Mississippi abortion ban that might be the perfect vehicle for a challenge to Roe v. Wade." She points out that Chief Justice John Roberts "went from being the essential fulcrum on a court split between four liberal and four very conservative jurists, to a choice between being the sixth conservative on a far-right court or a dissenter" since Amy Coney Barrett was shoved onto the court by the former guy and Mitch McConnell.

Roberts might be eyeing the growing support for court expansion—including among scholars and influencers and, yeah, that Biden commission that may or may not be useless—and thinking that he needs to do something to slow the momentum behind that. He could be thinking about his own legacy and might sincerely not want to be the guy that plummets the country back to the gilded age. Or he might just be waiting for the next case that hands the reins completely over to corporate America.

Roberts was the deciding vote, after all, in gutting the Voting Rights Act in 2013, unleashing a torrent of voter suppression laws throughout the country. Roberts was one of the six who decided this week that children can be incarcerated for life without the hope of parole.

He handed that decision to Brett Kavanaugh to write—the same Brett Kavanaugh who has credibly been accused of attempted rape of a classmate as a juvenile, the Brett Kavanaugh who told the Senate Judiciary Committee that his activities as a teen shouldn't be held against him. "If we want to sit here and talk about whether a Supreme Court nomination should be based on a high school yearbook page, I think that's taken us to a new level of absurdity," he said. He can't be held accountable for his actions as a minor, but is fine condemning others to life in prison from his seat on the most powerful court in the nation. As is Roberts.

At the same time, the country is a vastly different one from what it was in 1937. Starting with the part where a president—who was elected with the assistance of a foreign adversary and attempted to coerce yet another foreign leader into finding dirt on his political opponent—tried to overturn the results of an election and sicced an armed mob to ransack the Capitol and intimidate the Congress. And the part where there are Republicans still serving in Congress who endorsed that action.

One of the two major ruling parties of the United State will do anything—ANYTHING—to regain political power and hold it forever. That's the party that created this Supreme Court, the court that just rubber-stamped the barbarity of keeping a juvenile incarcerated for life. The Supreme Court that in 2020 allowed the resumption of the federal government killing people in the name of "justice," keeping the U.S. in a death penalty league with China, Syria, and Saudi Arabia.

So, yes, it's time for the Supreme Court to join the 21st century and be modernized. It's time for 20th-century politicians like House Speaker Nancy Pelosi and President Joe Biden to recognize that. Considering where we are in 2021 and where the Republican Party is, balancing the court with the addition of four qualified and experienced judges is the most reasonable and modest reform imaginable.

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