Abolish the Supreme Court. Now.
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The Supreme Court has consistently been on the wrong side of history. Its decision to overturn Roe v. Wade is all we need to know about it.
On Friday morning, America awoke to the news that the Supreme Court officially voted to overturn Roe v. Wade, a landmark case that established a constitutional right to an abortion, by a 6-3 margin. This comes on the heels of a draft opinion leaked on May 2nd, written by conservative Justice Samuel Alito, which held that Roe and Casey v. Planned Parenthood would be struck down. Predictably, while conservatives and religious organizations rejoiced, liberals and women’s rights advocacy groups lamented. Former Vice President Mike Pence jubilantly declared that “life won,” while President Joe Biden described it as a “sad day” for America. As tragic as the Court's denial of abortion rights is, it is more than that. It's the final sign that the Supreme Court's power must be significantly reduced, if not abolished entirely.
If the moral arc of the universe bends towards justice, the Supreme Court has consistently acted against it for 200 years. I could recount cases where the Supreme Court enforced segregation, legitimized eugenics, upheld the internment of Japanese-Americans in concentration camps, and gutted voting protections for minority communities. But outside of its horrific track record, there are valid political and practical reasons to consider abolishing the Supreme Court altogether, or at least limiting the power of individual justices. Harvard legal professor Mark Tushnet argues that the judiciary is inherently undemocratic, as it allows the popular will to be circumvented by unelected appointees who serve for life. This creates a system where the judiciary is unaccountable to the American people, as judges and Supreme Court justices do not face the possibility of being recalled or losing their seat for a decision that is opposed by the voters. 66% of Americans opposed the Court’s decision when it was leaked in May, and 59% support codifying abortion into federal law. Abolishing the Supreme Court would be a major step for American democracy, since it would prevent partisan judges from using their lifetime positions to strip Americans of their established rights.
Furthermore, the Supreme Court has lost its legitimacy in recent years. Just 25% of Americans have confidence in the institution, which can be attributed to the controversial appointments of conservative justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Gorsuch was confirmed by Republicans who refused to even hold a hearing for Obama nominee Merrick Garland, Kavanaugh was dogged by a sexual assault allegation by college professor Christine Blasey Ford, and Barrett’s confirmation was rushed to occur before the 2020 presidential election (Republicans had previously refused to hold a hearing for Garland because it was an election year). If there was ever a time to radically change the Supreme Court, it is now.
All this compounds the Supreme Court’s fundamental lack of Constitutional authority. The Supreme Court’s orders can only be enforced by Congress and the president, both of whom have the choice not to follow the Supreme Court’s rulings if they deem the decisions unconstitutional or inappropriate. Defying the Supreme Court has historical precedent, too. Abraham Lincoln’s Emancipation Proclamation, which freed enslaved Africans in Confederate states during the Civil War, was criticized as unconstitutional for violating the Dred Scott decision, which established that the federal government could not regulate slavery. The response? “Nobody pretends this act is constitutional, and nobody cares if it is or not,” said The New York Times. In essence, the Supreme Court “only has power inasmuch as people believe it does,” in the words of Vox’s Zack Beauchamp. This provides a practical reason for abolishing the Supreme Court: plainly, it’s unnecessary.
Another approach to resolving the Supreme Court’s antidemocratic tendencies (short of dismantling it altogether) is a method called “court-packing.” The practice originated during the New Deal, when conservative justices regularly overturned progressive legislation that had regulated the economy. In response, President Franklin D. Roosevelt suggested adding a new justice to the Supreme Court for every justice who reached the age of 70 and failed to retire. The plan failed and was widely rejected as an overreach of presidential authority, but has made a resurgence in response to the conservative dominance of the judiciary under Donald Trump (who appointed three Supreme Court justices and 226 federal judges). Mark Tushnet, the aforementioned legal scholar, suggested imposing an 18-year term limit for justices as a start. Moreover, the Biden administration has contemplated adding new justices, but has failed to introduce legislation to do so. And it seems unlikely that Biden will be able to pass a bill creating new positions on the Supreme Court: doing so would certainly require the abolition of the filibuster, which would face certain obstruction from Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), the two Senators required for Democrats to obtain a simple majority.
In short, nothing looks hopeful, but the urgency for action is palpable. Roe v. Wade wasn’t just a case about abortion; rather, it was also a case about the right to privacy, first established in Griswold v. Connecticut. With that legal precedent severely eroded, there’s nothing to stop a reanimated conservative Court from overturning previous rulings that are unpopular with the evangelical right. This is exactly what Justice Clarence Thomas, in his concurring opinion on overturning Roe, suggested the Supreme Court should do. Established rights that may appear next on the chopping block include the right to contraception (Griswold), gay marriage (Obergefell v. Hodges), and same-sex sexual relationships (Lawrence v. Texas). Should America be forced to relitigate these foundational rights, its soul will be irreversibly poisoned. Part of the autopsy will be its failure to keep the Supreme Court’s powers in check, and its failure to save the thousands of American women who will die from being forced to take their pregnancies to term.
Abolish the Supreme Court. Now.