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This morning, the extremist conservative majority on the Supreme Court ruled that a former president has absolute immunity for their “core constitutional powers” but not unofficial acts.
What is official versus unofficial is murky, and SCOTUS declined to strictly define that line. At the same time, they sent Trump’s case back to a trial judge to determine if what, if any, of his actions in that case were unofficial.
Yes, three days before July Fourth, the Supreme Court has deemed that a president essentially has the powers of a king.
In her dissent, Justice Sonia Sotomayor wrote the following:
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
She ended her long and chilling response with this:
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.
Folks, this is pretty bad, and it’s never been more clear that the only way forward out of this mess with an extremist majority is to finally expand the Supreme Court, which should have been done long before now.
I know what many of you are thinking: Charlotte, how earth is that feasible? We can’t even hold accountable the blatant corruption of Alito and Thomas.
You’re right on that latter point. As I wrote a few months ago, removing a Supreme Court justice is damn near impossible.
But fortunately, expanding the Supreme Court is a much easier process. Let’s review:
The Constitution does not specify the number of seats on the Supreme Court. This power was left to Congress, which set the Supreme Court's size at one chief justice and five associates in the Judiciary Act of 1789. It was legally changed seven times.
It underwent five full legal implementations:
1789-1807: six seats
1807-1837: seven seats
1837-1866: ten seats
1866-1867: nine seats
1867-1869: eight seats
1869-present: nine seats
And twice, legislation changed its size but was never implemented for various reasons, notably the Judiciary Act of 1801 (or Midnight Judges Act), which would have reduced its size to five upon the next vacancy but was repealed by the Judiciary Act of 1802.
Another attempt that was never (fully) implemented was the Judicial Circuits Act of 1866, which would have provided the next three justices not be replaced when they retire; however, only two seats were eliminated before the Circuit Judges Act altered the size to nine seats.
With the Federal Judgeship Act of 1990, Congress authorized 11 new circuit judgeships and 61 new district judgeships. The sky did not fall. It was overwhelmingly passed in a bipartisan vote and signed into law by a Republican president.
Quite frankly, expanding the Supreme Court to 13 members to reflect our current thirteen federal appellate courts is just plain ole common sense backed up firmly by precedent.
Contrary to the perception of many, FDR's oft-cited "court-packing" plan was never ruled unconstitutional, nor was it ever considered by the courts because the legislation never passed Congress. In fact, it didn't even get a clear up-and-down floor vote on the merits.
The primary reason behind the defeat of FDR's legislation to expand the size of the court was the general incompetence within the administration, including by FDR himself in a rare fumble by one of our greatest presidents. A ton of unforced errors tanked public support. Folks forget that FDR's vice president publicly opposed it.
So, while there may be a good discussion on the political challenges against expanding the court, citing the Constitution or "that's the way it's always been" are not good reasons. The legal reasoning is crystal clear.
In the past, President Biden has refused push for this, and it’s easy to see why. If the Supreme Court were expanded under a Democratic trifecta (House, Senate, signed by the president), there’s no reason to think it wouldn’t be further expanded under a subsequent GOP trifecta.
That’s a fair concern, and it’s understandable why Pres. Biden has declined to endorse the kick-off what could, and probably would, become a judicial power arms race, which could theoretically be destabilizing for American democracy.
That’s all well and good, but we’re now at the point where we have no choice. This extremist majority has made it abundantly clear they have no respect for accountability and the essential “checks and balances” function of our democracy.
We are now in extremely dangerous territory, even worse than before, and it’s long past time for the gloves to come off.
President Biden needs to campaign on expanding the Supreme Court. It’s very simple: win back the House, hold the Senate at a 50-50 split (with a tiebreaker vote by Vice President Harris), and pass legislation with a filibuster carveout.
That needs to be the message. We can expand the Supreme Court, codify Roe, and prove to the American people that Democrats are willing to fight for the preservation of democracy by using the full instrumentation of the Constitution.
There is nothing unconstitutional, immoral, unethical, or unprecedented (several times over) by expanding the Supreme Court.
It’s time, Mr. President.
It’s the best way forward, and it’s the only way forward.
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