The U.S. Supreme Court term is finally over, leaving in its wake a slew of fundamental rights and governmental functions either gutted or explicitly stripped away. However, the carnage is not over.
The court has taken up several new cases for next term that bode terribly for our individual freedoms and democracy, given the court’s regressive track record. The only way to stop the bleeding and try to rebuild is to reform the Supreme Court, and it is time for Connecticut’s Congressional delegation to get on board.
Over the course of this term, the court made it harder to sue police officers who use blatant excessive force, even when it results in death. It made the Constitutional right to counsel in criminal proceedings meaningless by closing off remedies for ineffective assistance of counsel, agreeing with the state of Arizona that “innocence is not enough.”
The court allowed the U.S. government to withhold evidence of torture at CIA black sites. It denied residents of Puerto Rico access to Social Security benefits. It made it harder for detained immigrants to prove their right to remain in the United States.
The Court overturned campaign finance regulations, making it easier to bribe politicians once they are in office. It weakened Miranda rights. It forced states to fund private religious schools. It allowed public school employees to coerce students to participate in group prayer. It gutted states’ abilities to regulate concealed firearms. It undermined tribal sovereignty. It limited the Environmental Protection Agency’s ability to regulate greenhouse gasses. And of course, the Court overturned Roe v. Wade and stripped millions of their bodily autonomy and access to abortion.
These decisions would have been unimaginable only a few years ago. After refusing to seat Merrick Garland for almost a year, holding his seat open for Neil Gorsuch, relentlessly pressuring Anthony Kennedy to retire to make way for Brett Kavanaugh, and rushing through Amy Coney Barrett’s confirmation in the midst of the 2020 election, the Republicans captured the court. Thorough training and vetting by the Federalist Society ensured that these justices would institute the Republicans’ unpopular agenda and will continue to do so for decades if something is not done.
Some in Congress are pushing to address the court’s overreach through legislation, such as that to codify the right to abortion or more explicitly delegate authority on climate change to the EPA. However, there is no reason to believe that a court acting on ideological impulse would allow these laws to stand, even if Congress were able to gather the will to actually pass them. At the end of the day, there is likely little practical difference between codifying Roe and doing nothing.
If our Congressional delegation is as serious as it says it is about protecting our rights, it needs to get serious about court reform. The Judiciary Act of 2021 would add four seats to the Supreme Court, matching the number of circuit courts in accordance with historical practice.
Some argue that expanding the court will start an “arms race” where Republicans would just add more seats the next time they are in power. First of all, so what? Will they overturn Roe, expand the Second Amendment even further, gut the administrative state? We are already there. We have an ultraconservative court already, so why unilaterally disarm?
But second of all, the expansion of the court, regardless of partisan composition, can be a benefit. I would much sooner have a larger Supreme Court, where single justice’s deaths don’t mean dramatic swings on the court and that put all of our rights in danger.
But expanding the court is only a Band-Aid. We need to bring more accountability to the judiciary. The Supreme Court needs an enforceable code of ethics. It needs term limits and age restrictions, similar to the lower federal courts and our own state Supreme Court. Congress can strip the court of jurisdiction over certain issues and return them to the democratically-accountable branches. These and more reforms are needed, but if we do not address the lawlessness of the current court now, we can only expect more radical judicial rule and continued silencing of the voices of the American people.
It is time for all of Connecticut’s congressional leaders to get on board, expand the court, and give renewed meaning to the words etched over the Supreme Court: “Equal Justice Under Law.”
Steve Kennedy is a Newtown resident and the Organizing and Network Director of the People’s Parity Project, a nationwide network of law students and new attorneys organizing to unrig the legal system and build a justice system that values people over profits.