Unrigging the Courts and our Democracy

Fueled by dark money groups, Republicans have completely taken over the federal judiciary. For decades, Republicans have hijacked the federal judiciary, installing far-right extremist judges hell-bent on rolling back civil rights protections, reproductive justice, workers’ rights, LGBTQ equality, and more. As president, Donald Trump’s ramped up the GOP attack on our courts, with help from his chief enabler, Mitch McConnell. Together, Trump and McConnell successfully confirmed over 200 judges to the federal judiciary, including three Supreme Court justices. These judges are overwhelmingly white, male, and young. Many of them were rated “unqualified” to serve as judges. And although Trump has mercifully left office, his judges will be on the bench for the rest of their lives, working to overturn any progressive legislation passed throughout the country.

Every single issue we care about comes down to the courts. Conservatives understand how important the courts are in blocking progress and protecting conservative interests. That’s why they want to get and keep control of the judiciary to ensure they can achieve their preferred outcomes in court -- by turning the judiciary into a partisan circus.

Why does this matter? Because an overwhelmingly conservative judiciary has already led to unfettered money influencing our democratic processes, the gutting of the Voting Rights Act which has led to historic voter suppression, rollbacks of critical environmental regulations, attacks on reproductive rights, and ongoing assaults on workers and immigrants. To unrig our courts, we need to pass bold, structural reform in these four areas:

• Supreme Court expansion
• Expansion of the lower federal courts
• Term limits for Supreme Court justices
• Improved ethics and transparency requirements

This may seem complicated, but we can do this with a simple legislative vote and with no constitutional amendments. Keep reading for more on Indivisible’s Court Reform Agenda and what other immediate steps President Biden can take to unrig our courts.

Indivisible’s Court Reform Agenda

Unrigging the courts is a complex problem, but there are several immediate steps we can take to address the problem. Along with our partners in the Unrig the Courts coalition, we are calling for the following solutions, which can be achieved through simple legislation, with no constitutional amendment required:

• Supreme Court expansion. There is no concrete or constitutional reason for there to be only 9 justices. When the Supreme Court first convened in 1790, there were just six justices. Since then, the number has fluctuated between 5 and 10 by statute, and by obstructionism -- most recently in 2016, when Mitch McConnell effectively reduced the number of justices to 8 when he refused to grant then-President Obama’s nominee to the bench, Merrick Garland. The three conservatice justices that Donald Trump nominated, who now make up a 6-3 conservative majority, represent an urgent threat not just to progressive legislation, but to our democracy. Urgent threats require urgent solutions. In this case, that means we need to add seats to the Supreme Court.
• Expand the lower federal courts. Most federal cases are decided in the lower district and appellate courts -- but those courts are dramatically out of balance, too. Because of Republicans’ wholesale obstruction of Obama’s judicial nominees, Trump was allowed to stack the courts with far-right, unqualified judges, 85% of them white, and 76% of them male. There is a long history of expanding the federal judiciary both to address the backlog of cases, and to address the lack of diversity on the federal bench. In fact, Congress added 152 seats in 1978 for those reasons. We are facing those exact problems today, which is why a significant expansion of the lower federal courts is critical.
• Term limits for Supreme Court justices. The Supreme Court in particular has become a victim of extreme partisanship, largely because there are so few vacancies, and those vacancies occur unpredictably. Senators on both sides of the aisle know how critical the ideological makeup of the court is, so every vacancy is treated like an all-out war. The nomination process could be depoliticized by term limiting justices, ensuring that every president would get at least two Supreme Court picks per term.
• Improved ethics and transparency requirements for Supreme Court justices. Unlike all other federal judges, Supreme Court justices are not required to follow a code of ethics. Any comprehensive court reform bill must include a Supreme Court code of ethics, improved disclosure requirements for justices, and a mechanism for recusal in the event of conflicts of interest.

President Biden’s Role in Unrigging our Courts

Separately from Congress, President Biden will also play a huge role in ensuring we have fair, equitable courts that represent the needs of the people. As president, Biden is solely responsible for nominating judges to the federal judiciary and the Supreme Court. Until we pass our court reform agenda, these judges will serve for life, so it’s critical that he nominates people who, unlike Trump’s nominees, will follow the law and not party affiliation. It’s also critically important that Biden improve diversity on the bench -- not just racial diversity, but professional diversity as well. In other words, we want to see Biden pick civil rights attorneys, public defenders, environmental law experts, and other types of lawyers who are usually overlooked for federal judgeships.

Our partners Demand Justice are leading the way in providing criteria for the judges President Biden should be appointing. They say:

“Instead of elevating corporate lawyers, the next president must nominate judges who understand the impact of the law on all Americans because they have fought for justice and equality; represented plaintiffs, workers, or indigent defendants; or studied the law from that vantage point.”

President Biden’s Court Reform Commission

Additionally, President Biden is putting together a bipartisan court reform commission that will explore ways to fix our broken judicial system, including court expansion. It is critical that the right voices make it onto the commission, meaning people who understand how our federal judiciary has been undermined over the years and recommend reforms to address the problems. Members of this commission must:

1. Explicitly acknowledge the need for structural reform of the courts
2. Represent America’s diversity, with an extra focus on the Black, indigenous, people of color, women, and LGBTQ communities that are most endangered by the current Supreme Court.
3. Reflect a diversity of legal experience. The commission must include not only scholars with expertise in constitutional law, but also advocates for the individuals and communities who have been on the receiving end of this Supreme Court’s worst decisions, like public defenders or legal advocates.
4. Include representatives from the court reform movement who have brought us to this pivotal moment

For more information on the courts commission, read this letter we signed onto with our court reform partners.