To the editor,
The loss of Justice Ginsburg only underscores what was already clear: Trump and McConnell have been filling the courts with ideologues and incompetent cronies so long they’ve broken the judiciary. The only way to fix it is for the legislative branch to change the number of justices on the Court. There is no constitutional requirement that we have nine justices on the Supreme Court, or that we have any certain number of judges on circuit or district courts.
Historically, changing those numbers (“packing the court”) has been viewed as out of bounds. But that was before the Senate eliminated the filibuster in judicial appointments. That was when we didn’t confirm judges after credible testimony by women they had sexually assaulted.
Congress codified the Court’s nine-justice configuration with the Judiciary Act of 1869. In 1937, Franklin Delano Roosevelt proposed legislation to pack the Court in response to the Court striking down New Deal legislation. That court-packing plan failed after Justice Owen Roberts--a swing vote at the time--voted to uphold minimum-wage legislation. Roberts’ change of heart is likely the reason FDR’s court-packing legislation never became law. That incident became the “switch in time that saved nine.” Nevertheless, Congress gave the Court nine justices, and Congress can take that away.
Don’t underestimate how far Trump and McConnell have gone to stuff the judiciary with fools and cronies. Blocking Merrick Garland was only the beginning. Traditionally, the American Bar Association vetted judicial nominees based on experience and qualifications. Trump ended that practice after the ABA rated several of his nominees as unqualified. In 2017, Trump nominee Matthew Spencer Petersen went viral after he was unable to define a “motion in limine,” something basic every lawyer should know.
Just last week, Judge William S. Stickman IV, a Trump appointee, ruled Pennsylvania’s COVID-19 closures unconstitutional. Stunningly, his justification cited the long-discredited 1905 Supreme Court case Lochner v. New York. The Court had effectively repudiated Lochner in 1937, with Justice Roberts’ “switch in time.”
This summer, Judge Neomi Rao, a Trump appointee, wrote a legally unsound opinion requiring a lower court to dismiss the criminal case against Trump associate Michael Flynn. That ruling was so unsound, so political, the entire D.C. Circuit reheard the case and reversed Rao.
The loss of Justice Ginsburg is an unparalleled tragedy. But it doesn’t change what needs to be done. Only Congress can repair the judiciary.