Abort the Illegitimate Court: End the Filibuster and Pack it

Photograph by Fred Schilling, Collection of the Supreme Court of the United States – Public Domain

Democrats cannot disgrace the Supreme Court by packing it (adding seats to it). It is already a disgrace. After the Court effectively overturned Roe v. Wade in Texas on September 1, 2021—in a devious, single page, 5-4, shadow decision—three of its members blasted their five colleagues in the majority for ignoring their “obligations to protect not only the rights of women, but also the sanctity of [the Court’s] precedents and of the rule of law.” Such a Court needs no help disgracing itself. The ‘lofty’ Court is and always has been a lowly political tool, resting on an illegitimate foundation since Marbury v. Madison (see below).

What could be more abasing to democracy than the fact that traditionally, five unelected, unaccountable, mostly old white men regularly decide existential social, health, and environmental issues for fifty disparate states, several territories, and 325 million people? In so doing, they sometimes overturn decades of accumulated law, struggle, wisdom, scholarship, science, sacrifice, and praxis. If you find this acceptable, you are too disoriented by a culture of winner-take-all politics, sports, and game shows to know what’s good for a plural society, or even really to call yourself pro-democracy.

After the Court’s racist pronouncement in the notorious Dred Scott decision, Abraham Lincoln warned: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

The framers of the Constitution never intended to concentrate such power in the Court, let alone in a single swing Justice. They could not agree on the contours of the judiciary, so they purposefully left its architecture vague. The Constitution contains a scant 125 words delineating the powers of the Supreme Court. The rest of its design is up to Congress, including its number of Justices. There is nothing sacred about that number. It has grown and shrunk from six in 1789, to five in 1801, to seven in 1807, to nine in 1837, to ten in 1863, to seven in 1866, to today’s nine in 1869. Democrats who abjure modifying it again aren’t winning any purity prizes; they’re just naïve.

What would Mitch McConnell do if he were a Democrat? Of course he’d blow up the filibuster, pack the Court, and go home laughing at the likes of Joes Manchin and Biden’s self-defeating piety. Asking what-would-Mitch-do at any given crossroads would be a good decision-making touchstone for stuck-in-the-pseudo-principled-mud Democrats. WWMD? Well what did he do? He stole Obama’s Supreme Court appointment and gave it to Trump by refusing to hold confirmation hearings a full ten months before the end of Obama’s term. As a result, a one term outlaw insurrectionist President is responsible for one third of the makeup of the Court, including a Justice credibly accused of sexual assault. How much more profane does the Court have to get before Democrats also learn to use it as a political tool, and pack it?

In its early years, the Court strove mightily for, and mostly obtained, unanimity in its decisions. Chief Justice John Marshall considered this vital to instilling public confidence that the Court’s rulings were rooted in principle not politics. That’s not to say they were, just that the Court’s custodians cared and tried. Contrast that with today’s routine 5-4 decisions and thinly veiled tribalism.

To be sure, some ‘venerable’ legal frameworks, like Dred Scott, scream to be overturned—but not by five exalted lawyers, or just one of them. If we are always looking to a Supreme Court majority for legal deliverance, praying our team edges the rival, we will just as surely lose as win. Or wait decades for a rematch. Defenders of the nine-member Court might wish to extoll its occasional burst of progressivism, like its school desegregation order in Brown v. Board of Education. But the Court generally lags decades behind the majoritarian values of the country as a whole. It gave cover to segregationists for sixty years after it canonized the vile separate but equal doctrine in Plessy v. Ferguson, before yielding to the desegregation movement in Brown in 1954.

Even so, high schools are more segregated today, de facto, than they were at the time of Brown. If that’s going to change in a lasting way, it will be through systemic work by people in all strata of society, like the effort it has taken to keep abortion safe and legal. The Supreme Court’s architects could not have envisioned the utility of digital information and social media in prefiguring solutions to what ails us socially. Peer to peer debate, modeling, and emulation are far better tools for building solutions and consensus than 5-4 Supreme Court fiats. In the words of Pogo, the Deep State is us—a thick stratum of well-intentioned people working to teach and adopt best practices across territorial and sectarian divides.

Most important, the Constitution does not endow the Court with the authority to declare laws unconstitutional. The Court dealt that authority to itself in Marbury v. Madison. Chief Justice Marshall’s opinion in Marbury was brilliant, but not for the reasons we’re taught in civics. Rather, it was a sophisticated and possibly conspiratorial power grab, which cemented dictatorship by another name at the center of our so-called democracy. We can and should undo it to restore balance to government. A detailed lesson debunking the ‘revealed wisdom’ of Marbury is essential to understanding the illegitimate foundation on which the Supreme Court rests.

On February 17, 1801, Thomas Jefferson defeated John Adams for the presidency, after the House of Representatives broke a tie in the Electoral College. Before Jefferson took office on March 4, Adams and Congress hurried to pass the Judiciary Act and the Organic Act of 1801, which increased the numbers of courts and judges to enable the outgoing Adams to pack the bench with Federalist-leaning judges. On the eve of his departure, Adams appointed 58 “Midnight Judges”—16 new circuit judges and 42 new justices of the peace.

In those days, an appointed judge could not begin serving until the Secretary of State delivered his stamped commission to him. Then Secretary of State John Marshall (also already a sitting Supreme Court Justice) received the stamped commissions and dispatched his younger brother James (one of Adams’ newly appointed circuit judges) to deliver the commissions. But the Marshalls delivered only about half of the commissions before time ran out.

After Jefferson assumed office, he instructed his interim Secretary of State to deliver eleven more of Adams’ commissions, but to withhold the other twelve. Jefferson’s administration then set out to undo the Federalists’ court packing gambit by repealing Adams’ Judiciary Act of 1801 and replacing it with an 1802 Act that further expanded the court system, giving Jefferson additional new judicial appointments.

Most of Adams’ leftover appointees let it go, including, it initially seemed, William Marbury. But about ten months later, Marbury and three of his fellow would-be judges filed a writ petition in the Supreme Court, asking it to order Secretary of State Madison to deliver their commissions.

Chief Justice Marshall wrote the opinion for the unanimous four member majority (the other two justices having recused themselves for reasons unknown). Marshall ruled that Marbury had been wronged, and that Secretary Madison had a ministerial duty to deliver his commission to him. However, Marshall also ruled that the Supreme Court lacked jurisdiction to hear the case, therefore the Court would not order the commission delivered.

The diabolical genius of Marshall’s decision lies in the fact that in order to determine that the Supreme Court lacked jurisdiction, he first examined the constitutionality of the Judiciary Act which created the new judgeships, and which also gave the Court “original” jurisdiction over any related disputes. Original jurisdiction means that a court can hear a dispute directly, rather than only on appeal from a court below. Marshall found that in conferring original jurisdiction on the Supreme Court, the Judiciary Act violated the Constitution, which narrowly lists the kinds of cases the Court may hear originally. Since Marbury’s case was not one of them, Marshall ruled that the Court lacked jurisdiction to grant his petition. But—and here’s the rub—Marshall did so only after ruling that the Judiciary Act was unconstitutional based on its clash with the Constitution. This was earth-shattering. The Supreme Court had never before examined the constitutionality of an act of Congress and struck it down.

The momentousness of Marshall’s decision was not instantly apparent. He had quietly ushered in the doctrine of judicial review—the idea that the Supreme Court is the final arbiter of constitutional disputes for the whole of government—without ruffling a lot of Jeffersonian feathers. On paper, it appeared as if Jefferson’s administration had won, since the Court did not command it to do anything and Marbury would not receive his commission. The decision even appeared to sit comfortably within the rival judicial doctrine of departmentalism, espoused by Jefferson’s anti-Federalists, according to which each branch of government decides the constitutionality of its own actions. Since Marbury v. Madison revolved around judicial appointments, it appeared at first glance as if Marshall had stayed within his judicial zone.

Although it took years for the Supreme Court to get comfortable dispensing the awesome power Marshall had seized for it, we certainly know today how comfortable the Court has grown with that power. Wherever you locate yourself on the political spectrum, you should be uncomfortable with the authority this small, politically malleable but unaccountable body wields. As Jefferson warned presciently in the wake of Marbury, Marshall’s extension of judicial authority has “place[d] us under the despotism of an Oligarchy.”

Marbury v. Madison never should have happened. Having directly participated in the matter as Adams’ Secretary of State, Justice Marshall should have recused himself. In addition, he had a business relationship with Marbury’s lawyer, Charles Lee (who was Adams’ Attorney General). Having failed to recuse himself, Marshall should have examined the Court’s jurisdiction first, not last. Finding none, he should have stopped there. As the Supreme Court later recognized, jurisdiction must be decided first not last: “The requirement that jurisdiction be established as a threshold matter ‘springs from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (Justice Scalia), quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884).

Demonstrating just how result-driven the Court can be, whereas Marshall used lack of jurisdiction as his excuse to transform not just the law but the Court itself, the five Justice majority in the recent Texas decision used it as their pretense for abstaining and letting the vigilante-enforced anti-abortion law take effect. Both represent stark examples of judicial activism (legislating from the bench) which conservatives love to decry—one by overreaching, the other by underreaching.

Can anyone still seriously argue that the Supreme Court transcends the political fray?

There is evidence that the Court’s decision in Marbury was the product not just of Marshall’s tortured logic, but of a conspiracy to manufacture the case and the result. Marbury and his co-petitioners—who showed lukewarm interest in their appointments by waiting ten months to file in the Supreme Court—showed even less interest after the decision. They never pursued the matter further, even though Marshall wrote them a roadmap on how to do so: by re-filing their claim in the lower D.C. circuit court, which did have original jurisdiction over it, and citing Marbury v. Madison, which squarely held they were entitled to their commissions.

Perhaps Marbury and his fellow petitioners walked away because as ardent Federalists, they were content to have stuck it to Jefferson. But on paper, they lost; they didn’t receive their commissions. It seems unlikely that John Marshall, the Federalist Party leader of Virginia and Adams’ Secretary of State, would have handed such a defeat to his brethren—unless they all understood it was no defeat at all, but the victory they collectively sought: to extend the reach of the Court.

Whether or not John Marshall’s power grab in Marbury v. Madison was born of conspiracy or serendipity, the omnipotent Supreme Court we know today rests on the entirely false premise that the Court has the authority to strike down any law it deems unconstitutional. As such, the Court we know is essentially a regime installed by a coup. A real return to first principles and Constitutional originalism, supposedly championed by the Court’s six Federalist Society aligned judges, would seem to dictate that they renounce the power the Court stole.

Since they won’t do that, Democrats need to treat the Court like the political tool it is, and pack it. Packing the Court is not the only way to curb its excesses and rein it in, but it would be a constitutional, fair, and precedented start.

The Court is more sublunar than Supreme. The choice we confront is pragmatic, not liturgical: Do we concede the progress we’ve made toward actually sanctifying life to a fascistic minority mouthing pro-life slogans while acting decidedly anti-life in every meaningful sense? Do we want to live in a made-for-real-life Handmaid’s Tale-style patriarchal dictatorship—or one or several of the other forms of dictatorship envisioned by Republican extremists and enabled by their marionettes on the Court? Or will we use the constitutional tools at our disposal to remake an institution that was badly conceived in the first place?

As surely as the Supreme Court can wipe away sacred bodily rights, the body politic can erase the Court’s ignoble majority of “partisan hacks.” End the Filibuster and Pack the Court—before it’s too late to find our way back to a representative democracy.

Ben Rosenfeld is a civil rights attorney in San Francisco. Twitter: @benrosenfeldlaw.