Liberals' Bogus Supreme Court Argument

Sorry, The Supreme Court Does Not Need More Justices

Bill and Ted’s Bogus Journey is not a great movie, but whenever I hear liberals scream about how we need to increase the number of justices on the Supreme Court, the Keanu Reeves-Alex Winter ‘80s movie is always the first thing that comes to mind.

You see, in the movie they die and meet Death, played superbly deadpan Bergman-esque by William Sadler.¹ In order to get back to life, they have to defeat Death in a contest, much like Max Van Sydow tried to beat Death at chess in The Seventh Seal. In that movie, Death is devious and clever, has never lost a game, and Sydow’s knight is full of regret when he invites the challenge. When Sydow thinks he is bragging to a monk about his strategy and how he will win, Death pulls back his hood to reveal his deceptiveness. No matter how many times Van Sydow tries to evade the end of the game, he knows he is going to lose and all he can do is make the most of the time he has left.

In Bogus Journey, Death is not nearly so intelligent. Bill and Ted are not smart enough to play chess (much less beat Death at it), so they play a game they know, Battleship. When Bill and Ted win, it turns out Death is a sore loser, doesn’t take it so well and says they have to beat him again, “Best 2 out of 3.” It then proceeds through a series of board and party games the two slackers know how to play; Clue, Twister, Electric Football, etc. Each time Death loses, each time he says they have to do it again “Best out of seven?” Ted inquires, and Death responds “YOU’RE DAMNED RIGHT!” It’s an hilarious gag.

It turns out liberals are sore losers too. Elections have consequences and one of those is that a President gets to appoint justices to the Federal bench, including the Supreme Court, subject to Senate approval. As they all have lifetime appointments, judicial appointments are the most lasting of a President’s legacy.

Republicans have been incredibly effective and efficient in this regard, even downright unprincipled, hypocritical, borderline evil. Nonetheless, they have always used the levers of power available to them to control the process and everything has been above board. Even though Democrats howled when McConnell eliminated the filibuster on Supreme Court nominees, they didn’t do that for Harry Reid who did it for every level except the Supreme Court prior, of which McConnell was just making the rule consistent. When McConnell held up hearings on Obama Supreme Court Nominee to replace Antonin Scalia, Merrick Garland, it was grossly undemocratic and arrogant, but within his capacity to do it. Then when the same situation occured four years later following Justice Ginsburg’s death², he hypocrtically rushed through the nomination of Amy Coney Barrett before the election, because he could. This is politics. This is how the game is played. Everything McConnell and Republicans did was within their capacity to do, but they never changed the institution of the Supreme Court itself.

So what was almost a 5-4 liberal majority became a 6-3 hardcore conservative one through the Trump years, all because liberals lost the 2016 election.³ Trump’s legacy on the court will last a good 30-40 years from now, but them’s the rules. No sense being a sore loser about it. You want to whine about it? Scoreboard. Try harder next time.

But that’s what Democrats do. They lose, and then they abhor the outcomes of losing, including every decision this reactionary Supreme Court throws out there. Their response is not to re-assess and wonder how to win more elections so it doesn’t happen again, it’s to say the Institution needs to change; that there now should be 13(!) Justices on the Court.⁴ Note, this has nothing to do with improving the Institution, it has everything to do with getting outcomes they like. Having a Democratic President add four new Justices gives them a (doing the math….) 7-6 Majority. GO FIGURE! Like Death losing at Clue to Bill and Ted, they don’t want to, you know, actually win elections, they want to change the rules to ensure they can’t ever, ever lose. It would be sad if it weren’t so pathetic they are making this argument. It’s the same disgusting rationalizations that Republicans use when they gerrymander legislative seats—”we can’t win on the merits so let’s create a bulwark against losing!” Liberals’ argument is the echoing wail of crybabies, upset at getting walloped; it’s a losing argument pushed by losers of the game.

What would happen if a Republican President ends up appointing a 9-4 or a 10-3 Majority they don’t say, but you can bet it would contain something along the lines of “We now need 21 Justices on the Supreme Court!”

It should be underscored as well that increasing the size of the Court has nothing to do with making justice work better. It just means the actual rule of law means less and that the Court would become MORE political. I can think of nothing more contrary to justice and the rule of law than turning it over to something akin to mob rule.

How it is Supposed to Work

Yes, the Supreme Court makes decisions you will not always like. The foundations of most all decisions are indeed based on existing law (no matter how much people think its all political).⁵ Yes, the appointment of a Justice can swing a number of cases one way or another so there is a level of politics on the Court. It just is what it is.

But liberals currently have a hard time appreciating and playing the long game of politics. Not everything can be fixed overnight. Liberals need to get better and more active at the grassroots across the country, including state legislatures in some non-liberal places. Mostly, however, they need to win Presidential and Senate races again, and again, and again.

Poorly received Supreme Court decisions actually HELP that cause. Much like the Roe⁶ decision helped fuel the Conservatives to power in 1980, reshaping the legislative landscape for 40 years, now too is the Dobbs decision fueling liberals.⁷ There has been a groundswell of liberal action that will result in more Democrats getting elected, Demoratic Senate and Presidential candidates receiving an activist and money advantage and more judicial appointments that will result. Who will replace aging Justices Clarence Thomas? If Democrats re-elect Biden or his successor, they will. If John Roberts should unfortunately die of a heart attack while on the bench, who will get to pick the new Chief Justice? Whoever is President at the time, which means picking electable candidates and winning elections. The Dobbs decision, and every other hardcore conservative decision on the bench, makes a Democratic President choosing the replacement more and more likely. This is how you change the makeup of the Court. This is how you get more liberal decisions. This is how the game is played.

Not by making the argument you need to increase the Court’s size to ensure a majority. That’s just bad sportsmanship, and poor strategy.

PurpleAmerica’s Cultural Corner

That is not to say that the Supreme Court and Federal Judiciary could not use some reforms. By and large, the Judiciary is shaped and managed by the other two branches, not Article III which just establishes the branch as a check and balance, it’s jurisdiction, and the terms for justices, which is currently for life.

Below are some reforms I think would wholly improve the Federal Judiciary.

• A Constitutional Amendment changing the term of a Justice from life to a single term of 20 years. There is a push to get more idealogues onto the courts at young ages in order to “fast track” them for the Supreme Court at a young age, where they can serve 30 years or longer. This does not serve Justice. Setting a 20 year term promotes the idea that experience is important, and there is less of a need to put them on the Court by the time they are 40.

• Tied to that, for the Supreme Court, terms would be staggered every 2 years, with the open year occuring in the Presidential year ending in 0 (‘00, ‘20, ‘40, ‘60, ‘80). The reason being that while they don’t get to appoint a Justice that year, the President oversees something else impacting politics that has a profound legislative impact, the census. This also ensures that every President gets to nominate at least one person to the Supreme Court, and minimizes the situations where there is mass turnover in a limited amount of time.

• And tied to that, we should just set nine justices in stone.⁸ Arguments to change the number only serve to weaken the institution and make the decisions seem all the more arbitrary.

• The recent Clarence Thomas revelations show that there needs to be some ethics Code of Conduct for justices with some enforcement mechanism. The only real enforcement against the Supreme Court is impeachment, so there will likely need to be an Amendment of some kind put in place and subsequent codifications as to what that entails.

• It should be required that judicial nominees get hearings before the Senate and a vote within 100 days. Period. What McConnell did to Merrick Garland was abhorrent to our system of government.⁹ Guess what though; it happens all the time on our lower courts where Senators put a hold on nominees regularly, leaving district and appellate seats open all the time. This practice has to stop. Vote yes or no. It’s not hard.

• Believe it or not, there is no requirement that a judge be a lawyer or even carry a law license. Some of the more sketchy nominees during the last ten years were even disapproved by the American Bar Association. There should be a requirement that any member of the bench be a lawyer in good standing with a state bar. If you are going to make judgments on the law, you should have to prove you know what the law means.

PurpleAmerica’s Final Word on the Subject

As I mentioned before, The Seventh Seal is one of the finest movies ever made. If you have never seen it, check it out. But I wanted to end with someone who actually beats Death, not in a comic way like Bogus Journey did. The other movie I think of about Death playing a game of chance with a victim is No Country for Old Men, when Javier Bardem meets a poor gas station owner and flips a coin as to whether he will kill him or not. The whole scene is tense and makes you realize how close we all may be to death at any time. So keep that lucky coin…put it in a good spot, don’t put it with the others.

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Footnotes and Fun Stuff

1. The whole role is a riff on Ingmar Bergman’s depiction of Death in The Seventh Seal, where a knight plays chess against Death. If you have never seen it, go to TCM right now and watch it; it’s one of the finest films ever created.

2. One of the more hypocritical aspects of that debacle is that liberals absolutely refuse to blame icon Ruth Bader Ginsburg herself for this. She had already had cancer (twice) and pushing 90 when then President Obama gave her a nudge and suggested it may be time to go. She refused, only to watch Trump win election and appoint her successor. This demonstrates an important aspect of Supreme Court nominations and that is Justices need to know when to leave so a sympathetic President can appoint a rightful successor to the Court.

3. Said it before, will say it again. Elections have consequences.

4. One of the rationalizations for this is that there are 13 Circuits, and therefore there should be 13 SC Justices. The “Circuits” were made at a time when Judges actually had to ride around to different courthouses and hear cases, and “riding circuit” was a thing. The total number of Circuits is an arbitrary number, nothing prevents them from making 21 if they chose to, or even 50. Having 50 justices on the Supreme Court would not make it any better, it would just turn it into a Legislature, which is not the role it was meant to play.

5. While the 5-4 and divisive issues get all the attention, you may be surprised to find out that most cases before the Supreme Court are 7-2 or closer to unanimous, and don’t get the attention because of their lack of controversy.

6. Which was not a poor decision, it was actually a smart, well constructed one. It just set off a huge political backlash.

7. To date, the Dobbs decision has played out an outsize impact on special and off year elections, favoring Democrats by incredibly wide margins.

8. In my honest opinion, seven is the appropriate number, but it has been accepted for some time now that nine works, and it does indeed seem to work.

9. Even though he had the capacity to do it.