Opinion: The Supreme Court isn't well. The only hope for a cure is more justices.
By Nancy Gertner and Laurence H. Tribe
Today at 5:01 p.m. EST
Nancy Gertner is a retired U.S. District Court judge. Laurence H. Tribe is Carl M. Loeb University Professor emeritus and professor of constitutional law emeritus at Harvard Law School. Both served on the Presidential Commission on the Supreme Court.
We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly. One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.
But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.
Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.
Worse, measures the court has enabled will fundamentally change the court and the law for decades. They operate to entrench the power of one political party: constricting the vote, denying fair access to the ballot to people of color and other minorities, and allowing legislative district lines to be drawn that exacerbate demographic differences. As a result, the usual ebb and flow that once tended to occur with succeeding elections is stalling. A Supreme Court that has been effectively packed by one party will remain packed into the indefinite future, with serious consequences to our democracy. This is a uniquely perilous moment that demands a unique response.
https://www.washingtonpost.com/opinions/2021/12/09/expand-supreme-court-laurence-tribe-nancy-gertner/
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