Pack, Impeach or Cry?

With a month to reflect on the Supreme Court term most recently concluded, articles are coming out about the Court’s rightward movement and what liberals can do about it. I think Emily Brazelton summarizes things efficiently here.

The legal left is taking the summer to think. In the next few weeks, the American Constitution Society and the YearlyKos Convention will host panels on the Supreme Court’s future and what the left can do about it. The short answer, of course, is cry. And then try to win the next election.

But is there something else we can do in the here and now to avoid such bad terms as the one gone past? Lest we forget,

In one full term, this Court has severely curbed local efforts to promote racial diversity in schools, upheld a right-wing ban on a necessary medical procedure for women, curbed students’ free speech rights, crippled Congress’ ability to keep corporate money out of political advertising, prevented taxpayers from challenging the constitutionality of Bush’s faith-based initiatives, made it almost impossible for women to prevail on claims of longterm sex discrimination . . . and they’re just getting started.

In Thursday’s New York Times, author Jean Edward Smith actually suggested the possibility of the next Congress packing the Supreme Court by increasing the number of justices. Following a discussion of the history of such measures, Smith concluded:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

That certainly sounds like a drastic measure that would be quite difficult to pull off politically, and nothing the cautious Democratic leadership would be willing to pursue any time soon from the looks of things.

Roberts and Bush

Is there some lesser option? The trouble is that the system is designed to protect judicial independence, which leaves us all largely at the mercy of bad justices, barring impeachable offenses. Congress does seem to be looking for alternatives, though, as Politico reported yesterday.

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation.

Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.

“There are things he has said, and I want to see how well he has complied with it,” Specter said, singling out Roberts.

The Specter inquiry poses a potential political problem for the GOP and future nominees because Democrats are increasingly complaining that the Supreme Court moved quicker and more dramatically than advertised to overturn or chip away at prior decisions.

Making decisions contrary to testimony at confirmation hearings is not going to rise to the level of impeachment either, and the Specter probe is aimed at informing Congress on possible changes to its confirmation process (I thought the largely ceremonial hearings were a sham at the time, but that’s another topic). Perhaps this sort of thing will shame Alito and Roberts into being more moderate, but then again, we are dealing with two justices who willfully misled the Senate in hearings, so maybe they are impervious to being shamed.

If there’s any other course of action that might keep the Court from eroding individual rights so brazenly the next term, I would be interested to hear it. For now, crying and trying to win elections looks like the only viable option — along making sure 87-year-old John Paul Stevens has good enough medical care to make it through the next 18 months.


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