Washington, D.C. — A blockbuster U.S. Supreme Court term that saw an extremist right-wing majority roll back a string of long-held rights and protections has only heightened the need to consider major reforms to the high court and lower federal courts, two members who served on the presidential commission to study court reforms said Thursday.
The remarks from Sherrilyn Ifill, law professor and former president and director-counsel of the NAACP Legal Defense Fund, and Michael Waldman, president of the Brennan Center for Justice, came during a panel discussion co-sponsored by the Center for American Progress and the Brennan Center. The panel was moderated by Laura Coates, a senior legal analyst at CNN and host of The Laura Coates Show on Sirius XM.
“The Supreme Court sits within our democracy, not outside of it and over it,” Ifill said. She noted that respect for the court’s authority shouldn’t prevent Americans from considering reforms such as term limits for justices, a binding code of ethics, increased transparency for the court’s “shadow docket,” and clearer rules for recusal from cases presenting a conflict of interest.
“We are supposed to be able to correct issues that we see stand in the way of our democracy being able to be as true to itself as it could possibly be,” Ifill said.
Waldman said that the Supreme Court is “a political institution that we Americans have been fighting about since the beginning of the country’s history.” He argued that it’s not a breach of norms to talk about possible reforms such as expanding the number of seats or imposing term limits.
“How we read the Constitution and role of the Supreme Court is properly a major political issue,” Waldman said. “Certainly, the folks who, for decades, have waged a campaign to overturn Roe v. Wade or to have the individual right to gun ownership recognized in the constitution—they understood that. And we need to understand, too, that kitchen-table advocacy on the Constitution is going to be part of our debate going forward.”
Waldman also encouraged Congress to expand the number of judges in the lower federal appeals and district courts to keep pace with the expanding population. He noted that lower federal courts were last expanded in 1990, yet the population has grown by 100 million people. Expansion of lower courts would also provide a change to improve the diversity of judges on the federal bench, he said.
Waldman said the 6-3 conservative majority on the court has taken an extreme and ideological approach to how cases should be decided.
“We saw in the last few days of the term, last month, a decade’s worth of right-wing social change jammed into three days by the unelected part of the government.” He was referring to cases overturning a constitutional right to abortion, striking down a New York concealed-carry gun law, and curbing the regulatory powers of federal agencies.
“All the guardrails we now know need to try and contain a giant truck with the brakes cut and rumbling down the road,” he said.
Ifill said she was particularly concerned about the court’s lack of respect for long-standing precedent in cases, especially in overturning Roe v. Wade.
“There have to be a set of reasons and a set of benchmarks before you overrule a decision that you have made in the past, especially a long-standing decision that millions of people have relied on,” Ifill said
She took issue with conservatives who compared the court’s abortion decision to the historic overruling of Plessy v. Ferguson, which approved the racist “separate but equal” doctrine until it was overruled by Brown v. Board of Education.
“Plessy v. Ferguson was overturned after a long process of cases in which the court itself began to wear away at the doctrine of ‘separate but equal’,” Ifill said.
By contrast, Roe had been consistently upheld over nearly 50 years until it was suddenly overturned. When precedent is just “thrown to the wind,” people have a right to question the legitimacy of the court’s rulings, Ifill said.
Ifill warned that the next Supreme Court term could be even worse, with cases targeting affirmative action, voting rights, and the power of state courts to review elections. The latter case could “fundamentally upend politics in this country and is the single-most powerful threat to democracy on the court’s docket,” she said.
Watch the panel discussion: “Fixing Our Broken Courts”
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