Conservative columnist lays out a game plan for 'saving the politicized Supreme Court from itself'

12 December 2022

For decades, the U.S. Supreme Court was synonymous with social progress, and Republicans were part of that progress. Chief Justice Earl Warren was a Republican appointee of Republican President Dwight D. Eisenhower. In 1973, the majority opinion in Roe v. Wade was written by Justice Harry Blackmun, a Richard Nixon appointee. And Justice Anthony Kennedy, known for his unapologetically pro-gay rulings in Lawrence v. Texas and Obergefell v. Hodges, was a right-wing libertarian appointed by President Ronald Reagan.

But in 2022, the High Court has moved to the far right and has the low approval ratings to show for it. Democrats successfully used the overturning of Roe v. Wade with Dobbs v. Jackson Women’s Health Organization to tar and feather GOP candidates in the 2022 midterms. Critics of the High Court’s radical-right supermajority fear that protections for gay rights and access to contraception will be rolled back if Justice Clarence Thomas has his way.

Washington Post opinion columnist Jennifer Rubin has been a scathing critic of that radical-right supermajority and its ruling in the Dobbs decision. But in her December 12 column, the Never Trumper offers some reasons why the High Court may not be a lost cause.

“The Supreme Court’s right-wing majority has been on a tear lately,” Rubin explains. “In the last week alone, Justice Samuel A. Alito, Jr. made inappropriate wisecracks during oral arguments about whether a web designer can object to working with gay couples. And several right-wing justices seriously considered adopting a once-fringe legal theory that could upend how state courts oversee elections. Allegations also recently emerged that in 2014, Alito leaked the outcome in the Court’s Hobby Lobby case to a group of right-wing donors, which Alito denied.”

Rubin continues, “Fortunately, there is no shortage of ideas to return sanity to the Court. And there has never been a better time to advance them to the public.”

The columnist quotes Maya Wiley, president of the Leadership Conference on Civil and Human Rights and a frequent guest on MSNBC. According to Wiley, “The Supreme Court is now far out of step with the American mainstream and has, as a result, become the best organizer of its own Court reform campaign…. More Americans believe term limits, transparency and ethics reform are good ideas.”

Rubin goes on to lay out three possible ways to bring about Supreme Court “reform”: (1) “Eliminate lifetime tenure for justices,” (2) “Expand the Court,” and (3) “Implement ethics rules for justices.”

In the U.S., Supreme Court appointments are lifetime appointments. All three of the socially conservative justices that former President Donald Trump appointed are Generation Xers, which means that if Justices Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch live as long as the late Justice Ruth Bader Ginsburg (who was 87 when she died in 2020), they could be on the Court 30 or more years from now. Kavanaugh is 57, Gorsuch is 55, and Barrett is 50. If Barrett lives to be 90, she could be on the Court in 2062.

Some other countries have term limits for their supreme courts. In Uruguay, justices are appointed to ten-year terms. And Rubin describes “18-year terms” as an idea that is “gaining broader support among the public.”

“Democracy is not well served when the same pack of out-of-touch Ivy League law school alumni can dominate the bench for decades simply because of Senate gamesmanship and politically timed retirements,” Rubin argues. “Establishing terms limits could ameliorate those practices. It could also help detoxify confirmation hearings and end the unseemly practice of justices purportedly misrepresenting their views simply to be confirmed.”

Rubin points out that Congress has the power to increase the Supreme Court’s number of seats. President Franklin Delano Roosevelt proposed expanding the Court during the 1930s, although he encountered opposition from both Democrats and Republicans in Congress.

“The number of seats on the High Court is not set in stone,” Rubin observes. “It was set at nine when the nation had nine circuits; there are now 13 (circuits). And Republicans effectively reduced the number to eight when they refused to consider President Barack Obama’s nomination of Merrick Garland to the Court in March 2016…. For those who say expansion would politicize the Court, remember that the Court has already been politicized.”

Rubin concludes her column by stressing that the United States is in a bad place when the public has such a low opinion of the Supreme Court.

“The goal should be to rebuild the public’s confidence in the rule of law,” Rubin writes. “There is arguably no more important task. It’s time to start preparing the public to save the Supreme Court from itself.”

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