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Unrig the Courts Coalition Submits Comments to Biden’s Court Commission

08/17/2021

FOR IMMEDIATE RELEASE
August 17,2021
Contact:
Kenny Palmer | press@indivisible.org

The primary threat to the Supreme Court as an institution isn’t a mystery: it's the manipulation of the Court by partisan actors and external, dark-money organizations, including the theft of two seats in the last five years, to install six conservative justices who care more about Republican political outcomes than they do about upholding the law.

Washington, DC — Today, the Unrig the Courts coalition submitted the following comment to the Presidential Commission on the Supreme Court of the United States, President Biden’s commission that has been tasked with evaluating the merits of different court reforms. In its comment, the coalition urges the Commission to recommend Supreme Court expansion, term limits for justices, and improved ethics requirements for justices.

The most important of these reforms, without question, is the expansion of the Supreme Court. The Court has been captured by partisan interests, more interested in conservative political outcomes than in upholding the law. It should be obvious, to commissioners and to lay people alike, that the only way to restore balance and integrity to the Court is by adding seats.

The full comment from the Unrig the Courts coalition is below.

August 17, 2021

The Unrig the Courts coalition appreciates the opportunity to share our thoughts with the Presidential Commission on the Supreme Court of the United States on the damage that has been done to the Supreme Court of the United States, why reform is absolutely critical to repair that damage, and what that reform must entail. While our coalition believes that the need for reform, and the shape that reform must take is glaringly obvious, we urge the Commission to recommend the following reforms to the president:

  • Supreme Court expansion. There is nothing magic about the number nine. There is nothing in the constitution that sets the number of justices at nine, either. In fact, when the Supreme Court first convened in 1790, there were six justices. The number has fluctuated between five and 10 by statute, most often to reflect a change in the number of circuits for the U.S. Courts of Appeals. The most recent statutory change to the size of the Court occurred with the Judiciary Act of 1869, in which Congress set the number of justices on the Court to nine, in alignment with the number of circuit courts in the United States at that time. In 2016 Mitch McConnell effectively circumvented statutory law and reduced the number to eight by holding the seat to which Merrick Garland was nominated open for more than a year. In order to undo the damage that has been done, we must add at least four seats to the Supreme Court to restore its balance and legitimacy.
  • Term limits for Supreme Court justices. The Supreme Court has become a victim of extreme partisanship, in large part 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 and that justices could not game the system in order to hand pick their successors.
  • 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 effort 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.

While we understand that the Commission is not studying the current state of the lower district and appellate courts, our coalition strongly believes that expanding those courts is also a necessary reform in addition to those we’ve laid out above.

The most critical of these reforms, without question, is Supreme Court expansion. The primary threat to the Supreme Court as an institution isn’t a mystery: it's the manipulation of the Court by partisan actors and external, dark-money organizations, including the theft of two seats in the last five years, to install six conservative justices who care more about Republican political outcomes than they do about upholding the law. As a result of this manipulation, the Court no longer reflects the country that it serves — it is out of sync with the American public both demographically (as a mostly white, male, elite institution) and ideologically (as a drastically more conservative institution than the country as a whole). It poses an immediate threat to long-held fundamental rights, such as the right to vote, the right to organize in the workplace, and the right to an abortion, that are overwhelmingly supported by the American public. It also poses a threat to meaningful legislation that the democratic branches of government — those that are more responsive to the electorate by their nature — may pass in the future. Expanding the bench, which can be done through legislation and does not require a constitutional amendment, is the only way to restore balance to the Supreme Court. We urge this Commission and President Biden to support this solution right away.

The Supreme Court derives its legitimacy from the trust and faith that the American people put into it. That trust has been severely eroded, thanks to the efforts of Senate Republicans, right-wing dark money groups, and special interests. Doing absolutely nothing to change the status quo does not protect the Court from claims that it has been politicized. The deed is done. The Court is politicized. And now we must act to restore balance and legitimacy to the institution.

Again, the Unrig the Courts coalition strongly urges the Commission to acknowledge this reality and issue a final report to the president that recommends the aforementioned reforms, including, most critically, Supreme Court expansion.

Sincerely,

The Unrig the Courts Coalition

Indivisible
Center for Popular Democracy
Demand Justice
Demos Action
Just Democracy
People’s Parity Project
Stand Up America
Take Back the Court

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