Each issue, The Progressive poses one question to a panel of expert voices—writers, thinkers, politicians, artists, and others who help shape the national conversation. For our August/September 2024 issue, we asked: What do we do about the Supreme Court?
Alexa Barrett
Director of communications for Take Back the Court Action Fund
Supreme Court expansion is essential to everything we care about.
The right wing knows they can’t sell their extremist policies at the ballot box, so they are using their hyperpartisan Court majority to lead an assault on democracy and strike blows against reproductive rights, racial justice, climate action, voting rights, and more. It’s no surprise Americans have lost faith in the Court—the same Justices imposing their unpopular agenda against our will are also plagued by corruption and conflicts of interest.
Court expansion is the only practical and proportional response. The number of Justices is set by an act of Congress and can be changed in the same way. More than sixty members of Congress, including Democratic Massachusetts Senator Elizabeth Warren and House Judiciary Committee Ranking Member Jerry Nadler, Democrat of New York, have backed legislation to add four seats to the Supreme Court. Any lawmakers serious about protecting our democracy must join them.
Mark Tushnet
Professor emeritus at Harvard Law School
In the short run, agitate strenuously for Supreme Court reform. My long-standing preference has been for Court expansion—adding four more Justices to the Court. That doesn’t yet have enough traction and generates unhelpful discussions about Republican retaliation. So put everything else on the table as well—limiting the Court’s jurisdiction, imposing term limits by statute, and more. In the current circumstances, none of these have any chance of being adopted. But there’s some evidence to suggest that the Justices don’t like it when people even propose reining them in, and respond by pulling back on their own.
In the long run, we must disabuse ourselves of the notion that the Supreme Court is a reliable promoter of progressive values. Despite some obviously major occasions when it has been—notably, Brown v. Board of Education, some aspects of women’s rights, and marriage equality—the Court’s overall record is one of obstructing progressive legislation.
And of course, winning political battles—“hearts and minds”—is far better in the long run than winning a handful of court cases.
Lisa Graves
Founder and executive director of True North Research
The six Republican appointees to the Supreme Court are not operating like judges but as a political arm of a regressive authoritarian agenda, ignoring the Constitution and precedents to deliver a slew of antidemocratic decrees aligned with their extremist political allies. They have been shielded by a misplaced perception of the Court as apolitical, and protected from accountability by the lack of an enforceable ethics code and by rightwing Senators.
We the People must turn away from the notion of judicial supremacy and empower Congress, the people’s branch, to rediscover its intended role as a meaningful check on the judiciary: restoring freedoms, instituting enforceable anti-corruption measures, and enacting structural reforms like term limits and limits on jurisdiction.
The out-of-control judges—installed by Leonard Leo and his dark money network—are bent on destroying our freedoms, and we cannot let that stand.