Unrigging the Courts and our Democracy

Fueled by dark money groups, corporate benefactors, and MAGA-aligned interests, Republicans have completely taken over the federal judiciary. For decades, Republicans have hijacked our courts, installing far-right extremist judges hell-bent on rolling back civil rights protections, reproductive justice, workers’ rights, LGBTQ equality, and more. During his presidency,  Donald Trump ramped up the GOP’s historical 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 inexperienced. Many of them were rated “unqualified” to serve as judges. 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 even if they can’t in Congress -- 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, ongoing assaults on workers and immigrants, and perhaps worst of all, the overturning of Roe v. Wade, which has thrown abortion access into chaos across the country.

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 with no need for constitutional amendments. Keep reading for more on Indivisible’s Court Reform Agenda 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.  Of all the reforms we’ve endorsed, none would be as singularly impactful as Supreme Court expansion. Here’s why: 

• The conservative majority is out of control. The conservative justices on the Supreme Court were hand-selected by right-wing dark money groups to attack our constitutional rights, expand corporate power, and weaken anti-discrimination laws, voting rights, workers’ rights, reproductive rights, and more. They have been horrifyingly successful, having gutted the Voting Rights Act (twice), undermined environmental protections, and – perhaps worst of all – overturned abortion rights enshrined in Roe v. Wade. And they’re just getting started. The only way to restore and protect our constitutional rights is to expand the Court.
• There’s nothing magic about the number nine. There is nothing in the Constitution that sets the number of justices at nine or any other number. In fact, when the Supreme Court first convened in 1790, there were six justices.  The number has fluctuated between 5 and 10 by statute, and ultimately settled at nine to match the number of federal circuits – although we now boast 13 circuits. And lest we forget, in 2016, McConnell effectively reduced the number to 8 by holding the seat to which Merrick Garland was nominated open for more than a year.
• We need a big solution to a big problem. We know it may seem radical to suggest a major structural change to one of our democracy’s most critical institutions. But that institution, the Supreme Court, has already been irreparably broken by special interests and partisans in black robes. There is no reforming this conservative majority. All we can do is render them irrelevant by adding seats.

Other reforms are also needed to restore the public’s faith in our judiciary, which – like Supreme Court expansion – can be achieved through simple legislation, with no constitutional amendment required:

• 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. 

Take Action

If you want to fight back to save our courts, here are some ways you can get involved: 

• Demand your representative co-sponsor the Judiciary Act of 2023
• Demand your senator co-sponsor the Judiciary Act of 2023
• Tell your representative to hold the corrupt Supreme Court accountable
• Tell your senator to hold the corrupt Supreme Court accountable
• Tell Senate Democrats: stop letting Republicans block Biden judges