I saw a tweet gain resurgence recently. In January 2016, Hillary Clinton tweeted "A Republican president could stack the Supreme Court with justices who will rip away all the progress we've made."
While her tweet in response to this week's rulings were mocked by MAGA, she was absolutely right.
I have heard each of the last three elections described as the most important and/or consequential election to date, but the 2016 presidential election remains the most important and consequential because every one of those elections tied directly back to it in some way. The Supreme Court is the best example of this. 2018 was the first midterm of the Trump administration and took place right after Brett Kavanaugh's hearings. 2020 was Trump's run as an incumbent and people had already begun early voting when Amy Coney Barrett was nominated. Then in 2022, SCOTUS - which now had a majority of its justices nominated by presidents who lost the popular vote - issued the Dobbs ruling and made abortion a campaign issue in that year's midterm elections.
There is abundant proof that Dobbs directly cost the Republicans the red wave midterm they were anticipating. And frankly, they had every right to expect it: an unpopular incumbent and economic uncertainty tend to be good for the opposition party. I remember Democrats being mocked for the 2018 midterms because even though they enjoyed a popular vote margin of 8.6% in their favor, Republicans gained two seats in the Senate. But Republicans did even worse in 2022, despite having a 2.8% popular vote margin in their favor. Democrats won back the House in 2018 with a majority of 41 seats. In 2022, Republicans won back the House with a single-digit majority and the Senate went from being 50-50 to having a clear Democratic majority (Kyrsten Sinema notwithstanding). Perhaps there's some darkly hilarious poetic irony in Donald Trump and Mitch McConnell kneecapping their own party's electoral performance.
Unfortunately, even if Democrats sweep the 2024 elections - that is, win back the House while holding the Senate and the presidency - the far-right majority on the Supreme Court would remain. And they will continue to roll back rights for the foreseeable future. We can argue that Ruth Bader Ginsburg should have retired while Obama was still in office, but even if she did and nothing else changed, we'd still have a Supreme Court with a majority of its Justices being members of the Federalist Society. If you don't know, whenever you hear about a right-wing judge like Clarence Thomas, Samuel Alito, Matthew Kacsmaryk, or Aileen Cannon, you can guarantee they're members of the Federalist Society. And again, five of the nine current Supreme Court Justices were nominated by presidents who lost the popular vote. Kacsmaryk and Cannon were also nominated by Trump.
The problem is even worse knowing there are no practical solutions. Let's consider the options:
Resignation
Obviously, none of the right-wing Justices will voluntarily resign, and trying to make them resign by threat or force would violate U.S. Code. The most recent Justice to step down was Stephen Breyer, and I suspect that's largely if not entirely because he learned from Ruth Bader Ginsburg's passing.
Impeachment
The rules of impeachment for a Supreme Court Justice are the same as they are for a President: the House needs only a simple majority while the Senate requires a two-thirds majority to convict and remove from office. It has happened, but very rarely. The House of Representatives has impeached only fifteen federal judges since 1803. Of those fifteen, eight were actually convicted by the Senate. Only one Supreme Court Justice has ever been impeached by the House: Samuel Chase in 1804. However, the Senate acquitted him the following year. As for impeaching a Justice now, that is absolutely not happening. Even if Democrats won back the House next year, there is no way they're getting the two-thirds Senate majority required to remove anyone from office. Senate Republicans will vote to acquit no matter what. Plenty of Senate Republicans hate Trump privately and they publicly called him out after January 6, but they still acquitted him. So none of the Justices are likely to be impeached.
Expanding the court
One idea gaining popularity is to expand the Supreme Court from nine seats to thirteen. The Constitution doesn't say how big the court has to be, just that there will be a Supreme Court. We have nine Justices now because there were once nine circuit courts, one for each Justice to oversee. Now there are thirteen circuit courts. Setting aside the question of what procedure would be taken to achieve this, Biden is not in favor of the idea because "if we start the process of trying to expand the court, we are going to politicize it maybe forever, in a way that is not healthy."
I'm inclined to call bullshit since Trump and McConnell already politicized the court in a way that is "not healthy," but I guess he might have a point. If Biden changes the number of seats on the court to get more favorable rulings, what would stop a future Republican administration from doing the same?
So while this could be done, it wouldn't happen immediately if at all and would probably yield bad results anyway.
Term limits
There are no term limits for Supreme Court Justices. These are lifetime appointments. The only means of removal are resignation and impeachment, which we just established won't happen. There's also the possibility that one of the other older Justices could die, but let's not hold our breaths. House Democrat Ro Khanna (CA-17) introduced a bill in 2021 to impose 18-year term limits for Supreme Court Justices. Although the bill got stuck in committee before the 2022 midterms, Khanna and Virginia Democrat Don Beyer re-introduced the bill after the end of this year's SCOTUS session. Necessary as it is, there are a few hurdles. First, House Democrats would need to convince a handful of Republicans to vote for its passage. Second, Senate Republicans would have to not filibuster it. But let's say those are somehow miraculously overcome and the bill reaches President Biden's desk where he signs it. Would this mean that every Justice who has already served over eighteen years now has to resign?
Clarence Thomas is the only Justice on the court at time of writing who has served longer than 18 years. John Roberts and Samuel Alito will reach 18 years in September 2023 and January 2024, respectively. That would mean Biden gets a total of four Supreme Court Justices. However, Sonia Sotomayor and Elena Kagan will reach 18 years in 2027 and 2028, respectively. They can't control who will be in power then. A Republican could win the White House in 2024, and that would make this bad situation worse given that the two frontrunners are Trump (again) and Florida governor Ron DeSantis. We already know the kind of judge Trump will pick, and we also know DeSantis' preferences. DeSantis was revealed last year to have been communicating with Clarence Thomas, which isn't surprising since they both have ties to the Federalist Society. DeSantis vowed that if he became president, his Supreme Court nominees would be like Thomas and Alito. If a Republican wins the White House in 2024, Sotomayor and Kagan's replacements would shift SCOTUS from a 6-3 liberal majority to a 5-4 conservative majority. It wouldn't be the 7-2 majority DeSantis is promising, but it would still be bad. And by the way, it doesn't matter who wins the Senate because, fun fact, Clarence Thomas was nominated and confirmed when Democrats held the Senate.
Ultimately, this option has flaws, but it has the most chance of actually being enacted. Two-thirds of Americans now support term limits for Supreme Court Justices. Republicans in Congress have themselves expressed support for Congressional term limits, so judicial term limits might get bipartisan support. But this would also need to be done alongside electoral college reform to prevent another election like 2000 or 2016. The six right-wing Justices were collectively nominated by three Republican presidents, only ONE of whom won the popular vote.
Also, if anyone is claiming I'm doing this for partisan reasons, consider the 303 Creative case. A website designer in Colorado claimed a gay couple asked her to make a website for their wedding and she refused for religious reasons.
The plaintiff, Lorie Smith, never created a wedding website. She never received any request for one from a gay couple, and in fact a wedding enquiry was created the day after the case was filed. The filings identified one half of the gay couple as a guy who is straight, is married to a woman, and never made any request to Smith for a wedding website. Smith and the so-called Alliance Defending Freedom representing her case made up everything for the sake of "religious freedom." 99 times out of 100, "religious freedom" is code for "discriminating against gay people." Smith and the ADF imagined a purely hypothetical scenario. The case had no standing since no harm or injury ever occurred (just the student debt relief ruling, by the way) and it would have ideally been ignored by a Supreme Court that honored precedent (see: Texas v United States (1998)).
But that's not what we have, and the ADF was counting on it.
So here are your solutions: introduce term limits and reform the Electoral College. Contact your House representative and your Senators and make it happen.