The Supreme Court Can Be Fixed
Exactly how we get there and what could stop us
Today I am going to walk you through some complicated stuff regarding how to fix the Supreme Court. The thesis of this and what we SHOULD ALL BE TALKING ABOUT is that voting in this election and encouraging other like minded people to vote in this election is truly the fastest way to fix this activist court. If you take one thing away from this it is that we have to make it clear that the court will only get more and more dangerous if anyone decides to sit this election out. I’m laying it out here to make it easy to explain because I know all of this can get so in the weeds.
What we saw this week was the final nail in the coffin on any idea of a non-partisan Supreme Court.
The recent immunity decision was pulled whole cloth from the minds of the conservative justices to end the Georgia and Jack Smith investigations of Trump and included a totally made up rule of evidence to try to end the NY case.
Their recent overturning of the Chevron Doctrine, which has existed as law since 1984, shows that the claim in the Dobbs decision overturning Roe, that stare decisis should only be overturned in cases of great moral importance was BS. They came up with rationales to achieve the goals they want - they are a partisan court.
Years and years of them talking about liberal activists judges? Turns out…they were the activist judges.
This whole enterprise (taking over the judiciary) was a strategic plan. As Project 2025 lays bear, conservatives realized that as a minority they could never achieve actual democratic success, so they invested tons and tons (and tons) of resources in taking over institutions to achieve their goals. Leonard Leo started working at The Federalist Society in 1991, and one of his first actions as a young legal activist was to help Thomas get confirmed to the Supreme Court (they were friends).
Leo’s been at it for 33 years: this legal coup was not something that happened overnight. Likewise, I think people’s expectations need to be set that we cannot fix the problem with the Court overnight, but it very much can be fixed and there is a clear path to doing it.
The Supreme Court can be fixed in four ways:
Impeach & Replace:
What do we need: House majority, ⅔ of Senate & president
Expand the Court:
What do we need: House majority, 50 people in Senate willing to disregard the filibuster, & president
Term Limits:
What do we need: There is an argument about whether this requires a constitutional amendment or can be done the same as method (2)
Patience:
What do we need: Wait for Alito & Thomas to die, have the presidency & Senate majority.
1. Impeach & Replace:
House majority - can happen in 2025
⅔ of Senate - cannot happen in 2025
President - can happen in 2025
This is the most direct method to fixing the Court. Justice Thomas has accepted bribes from Harlan Crow and Justice Alito has flown anti-American flags at his home. But more than that, they are clearly engaged in politically biased acts. IMO, the path forward isn’t the Al Capone method (get him on tax evasion when we all know the actual crime was being a Mafia boss and killing tons of people), but the actual reason. These people are partisan actors who are legislating from the bench. Impeachment is a political process, it seems to me admitting that as an undeniable TRUTH at the outset is the best course for actually succeeding.
Like impeaching the president, the standard for impeaching a justice is “high crimes and misdemeanors”. Since impeachment is a political process not a legal one, we get to decide what that means. It doesn’t matter what the justices have done and if it meets some ephemeral legal definition - what matters is what the politicians sitting in the United States Congress think. The historical example we have of justice impeachment is Justice Samuel Chase who was impeached by the House in 1805 but not convicted by the Senate. And the basis of the impeachment was political bias in his work in lower courts. Senator Sheldon Whitehouse has made the argument we go after them for “extra-record fact finding,” which I think is a good way of putting in legalese the reality: they are peppering decisions with stuff clearly intended to help their deep-pocketed donor interests.
As said above, this Court is fully partisan and this is a partisan action, so it is virtually impossible to imagine any sitting Republican member of Congress voting for the impeachment of a conservative Supreme Court justice. Impeachment requires 2/3rds of the Senate - this is constitutionally defined - and the only way to change the threshold is to change the Constitution (which requires even MORE people than impeachment itself.)
AOC has said she is filing articles of impeachment.
How we get there:
Elect 67 Democrats to the Senate
Build political pressure on them to act through a public awareness and long-term messaging campaign with this specific call to action
Support investigative journalists who are finding out the reasons for the impeachment.
2. Expand the Court:
House majority - can happen in 2025
50 people in Senate willing to disregard the filibuster - can happen in 2025
President - can happen in 2025
This is the only conceivably viable way to fix the Supreme Court in the near term future, though I’ll note this is not a home run political action. What I mean by that, with some frankness here, is if we elect the necessary people to the Congress, they will not automatically do this.
One thing about the internet is it pulls people into echo chambers. It seems to be a bit like the people in the Silos (a great Apple TV series and book), in that the people of the internet are not aware they are in an echo chamber. We, the EYP community, are aware of the actions of the Supreme Court - how they are part of a legal coup going on in our country. There is not an overwhelming belief in the democratic voters of this country that the Supreme Court is engaging in such awful partisan behavior that we need to change the status quo. Many Democrat politicians sitting in Congress today would see supporting this as a career-killer. Because a politician’s job, at the end of the day, is to get re-elected. This means doing things their voters like or, at a minimum, not doing things that their voters strongly dislike. Members will be well aware that the Conservative media will latch on to this and whip moderate/swing voters into a frenzy. People in tough seats would be unwilling to do something that could cause them to lose re-election.
There will be a point when the court does something so egregious that it’s impossible for the people of the country not to lose their shit - the question will be if it is already too late. In my opinion, that moment will be when the Court okays a President Trump’s third term (God willing, he doesn’t even get a second one). Would they redefine the 22nd Amendment to only mean consecutive terms? In a world in which they found the president has absolute criminal immunity for official acts, I don’t see how it could be considered out of the question. An article published in The American Conservative, a right-wing blog and Project 2025 partner said, “If a man who once was president returns, after a series of years, to stand again for the office and proves so popular as to earn a second nonconsecutive term—as Trump seems bound to do—to deny him the right to run for a second consecutive term cuts against basic fair play.”
How we get there:
Elect 50 Democrats to the Senate who are willing to pierce the filibuster to accomplish this. Whether Democrats will get rid of the filibuster entirely is another question and not a necessary prerequisite. Democrats pierced the filibuster recently to address the debt ceiling issue - when they believe there is an existential crisis, they will do it. But it’s not a foregone conclusion.
Build political pressure on Congress to act, a public awareness campaign with this specific call to action. This is absolutely key - see above. There is an organization that has been working on this for a while, called Demand Justice. Fundamentally, this needs to go from a fringe ‘leftist’ idea to a mainstream one that moderates support.
3. Term Limits:
Congress could (maybe) pass a law instituting term limits. Some Democratic members (lead by Sheldon Whitehosue) have already filed this bill. The fundamental flaw in this is that the legislation would go to the Supreme Court who would undoubtedly find it unconstitutional and drive us into constitutional crisis.
Putting aside whether term limits are a good thing (at this point, giving the gerontocracy’s efforts to hold on and that Trump will start appointing 30-somethings, I think so). If the goal is to re-make the current political slant of the court, communications strategy dictates you take that head on. The incrementalism strategy only works when you own the decider.
That being said, this is a popular policy. If we get back to majority rule, I think it would be a great thing to do for Americans. Some people argue this requires a constitutional amendment.
4. Patience:
This is no rallying cry for people interested in a righteous battle, but it’s possible. Alito (74), Thomas (76) and Sotamayor (70) could all die in the next term, or the following one. The average lifespan of a man in the US is 76.3 - obviously these men have access to the best healthcare in the world and are by no means the norm.
Appointing a Supreme Court justice requires the president to nominate someone and for 50 members of the Senate to approve them. If the president is a Democrat but Republicans control the Senate, we will not get any Supreme Court appointees. That was the lesson from the Garland hearings.
Additionally, there are some ways the Supeme Court can be improved:
Senator Sheldon Whitehouse of Rhode Island has been on the reform the Supreme Court beat for a long time. He wrote a book about how the right used dark money to capture the court. He has a YouTube series of his floor speeches on the matter. He has a podcast series called Making the Case where he talks about it. He has one bill, the Supreme Court Ethics, Recusal, and Transparency Act, that passed the Senate Judiciary Committee but hasn’t flown elsewhere. This legislation would require the justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, and improve disclosure and transparency at the Court.
Some legal scholars have proposed even more norms-breaking solutions that are great for law review articles but have no political viability. To strip jurisdiction, to make all appellate judges rule on cases in a lottery system, to add a rotating cast of temporary judges. I can’t even wrap my head around some of these ideas, there’s no way they could be communicated effectively enough to gain widespread support.
Conclusion:
The internet is full of outrage politics. This past week has even sent me over the edge at times. The Supreme Court is one of the most challenging things to fix in our political system - we shouldn’t have let it get lost in the first place. But you can’t unring a bell, and I think that if people understand how the paths to change actually work, we can make this happen..
There’s a lot of content on TikTok about how ‘The Democrats’ always run on the Supreme Court and how if we lose elections we’ll lose our rights - and that ‘they’ are threatening ‘us’ to get the vote.
I mean, dems lost in 2016 . Because Trump was able to appoint three justices we did in fact lose reproductive rights. So it wasn’t a threat, it was a fact-based statement. And yes, RBG should have retired earlier, but ALSO Americans should have been more pissed when Republicans led by Mitch McConnell STOLE A SEAT from Barack Obama (Merrick Garland.) I see a lot more rage about the former than the latter (a looooot)!!! But let's be clear on the math: conservatives didn’t need 6 justices to overturn Roe, they needed 5. Even if RBG had stepped down and we had gotten her replaced with a liberal justice, Trump would have gotten 2 replacements and Roe would have been struck down.
Hindsight is 20/20, and the future is the only thing we can change. There are viable paths forward to fix the Supreme Court, but we need to get engaged and activated enough to get it done.
In Democracy in Retrograde we try to take your hopelessness and channel that into civic engagement that is authentic and sustainable for you. My political philosophy is that a rising tide lifts all boats, but that tide only rises with thousands of raindrops. It requires all of us to do a little.
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Thank you for laying this out so clearly for us!
I love hearing this strategy. However, it’s super frustrating that nothing can be done right now. Also, everything is pending on election outcomes: frightening