The Supreme Court is completely broken beyond repair and Constitutional change is needed. After more than 200 years of retirements timed mostly based upon when a particular Justice chose to retire, something ruinous has been employed in the last few retirements: strategically timed retirements to make sure that each Justice is replaced with one of the same party or of the preferred party of the retiring Justice.
STRATEGIC RETIREMENTS KILLED THE COURT
Since the 2005 retirement of Sandra Day O’Connor, it is fair to say that every retirement has been strategic. From now on, the Court will maintain the same balance, a Republican majority, unless and until something unexpected happens. How often can we expect the unexpected? Not very often. The last time a seat changed ownership was in 1991 when ill Democratic appointee Thurgood Marshall was replaced by the infamous Clarence Thomas. That was 28 years ago! A seat, once becoming the de facto property of a party, may stay with that party indefinitely — far more than the ‘thirty or forty years’ that worries some people.
In 2016, another seat was vacated unexpectedly. Antonin Scalia died suddenly a quarter century after the last non-strategic vacancy. For 48 years, the Court was in the hands of a Republican majority. The Antonin vacancy was about to change that. Under the usual rules of “advice and consent,” the Republican seat was to be filled by a Democratic president. That was stopped cold when Senate Majority Leader Mitch McConnell proclaimed just over an hour after the death announcement that he would not allow the seat to be filled.
REPUBLICANS GAMING SEATS FOR PERMANENT MAJORITY
As we all know, the Senate failed to do its job during the Barack Obama nomination, the open seat carried over to Donald Trump who picked Neil Gorsuch, the Senate eliminated the filibuster rule to fill the seat with reactionary Neil, and a slew of 5-4 pure partisan Republican opinions came down affecting our rights in every area.
But that wasn’t enough. Right before the 2016 election, Republicans spoke openly suggesting that the Scalia seat could be held open for four years during a Hillary Clinton presidency.
More recently, when 85 year old Democratic appointee Ruth Bader Ginsburg was out sick fighting cancer, Republican online shock troops salivated over getting a sixth reactionary seat, alternately claiming that Ruth Bader Ginsburg must step down, or that she was already dead. Since then, Mitch McConnell said he will basically install any Donald Trump nominee at any time. The “McConnell rule” is Republicans in, Democrats out.
UNSTACK THE SUPREME COURT FIRST
The Supreme Court is stacked. We do not need to stack the Court, we need to unstack the Court by adding more Justices as soon as possible. Unstack the Court to stop the bleeding. The current reactionary group of five Republicans are crushing modern America swiftly with 5-4 opinions affecting abortions, unions, rights to sue, rights to vote, death penalty appeals and painful deaths, antitrust, overtime, government secrecy, and everything else.
We have no choice but to stop the bleeding. We already know that Republicans plan to cheat to hold their illegitimate majority, so we cannot pretend that some war will escalate. It will anyway. It already has.
Of course, we also need some sort of orderly succession rule that prevents strategic retirements in the future. Such plans will require extraordinary support, a Constitutional amendment, and years of lag time as the damage by the current stolen majority increases. We cannot afford to wait. Unstack the Court as soon as possible.