Where Do We Go From Here? is a series of stories that explore the future of abortion. It is a collaboration between Mother Jones and Rewire News Group. You can read the rest of the package here.
After a horrifying court term that saw reproductive health rights obliterated at the same time we got guns gone wild, there’s no reason to pull punches: The Supreme Court needs to change. Democracy itself in the United States has to change, to be shored up against conservatives’ unrelenting assault.
The simplest and most effective solution is to pack (expand) the Supreme Court. Eleven members would be great—13 would be even better. But let’s not sleep on going big, and let’s demand an additional six justices. This isn’t arbitrary. The International Court of Justice, which is the judicial arm of the United Nations, has 15. That’s also true for the Court of Justice of the European Union. There’s no sacred reason the Supreme Court should be limited to nine members; arguably, more big brains could get us closer to justice.
The only reason conservatives provide against packing the Court is to assert it is a power grab by Democrats. Honestly? So be it. Conservatives made a procedural mockery of obtaining seats on the Court. Sen. Mitch McConnell didn’t just block a hearing for Merrick Garland. He bragged about it being his “single biggest decision” as Senate majority leader in 2016. Neil Gorsuch happily took that stolen seat. Brett Kavanaugh screamed his way through his confirmation hearings, blithely batting aside credible sexual harassment claims and declaring the Clintons were out to get him. Amy Coney Barrett let herself be rushed through the confirmation process, knowing full well that doing so flew in the face of McConnell’s ostensible rationale for blocking Garland—that it was too close to the election.
Democrats couldn’t stop those things because they didn’t have the numbers. At this moment—and perhaps only for a few more months—they do. Kill the filibuster, pack the Court.
If we don’t, it’s just 6-3 decisions for the rest of our lives, watching justice get crushed. It’s not just reproductive health. It’s not that guns will be even more rampant than they already are. It’s a Court making it much harder for immigrants to obtain systemic relief through the justice system by ruling they can’t bring class actions. It’s a Court making a mockery of their own jurisprudence by overturning their own ruling that saved a man from death only to consign him to death two years later after the composition of the Court became more bloodthirsty. In short, it’s a Court that is gleefully engaging in an inexorable grinding down of the most vulnerable, and it has to be stopped.
Packing the Supreme Court isn’t enough, though. Trump appointed 30 percent of the judges on the federal courts of appeal and 27 percent of the district court judges. These are people like Justin Walker, who now sits on the D.C. Circuit, but just four short years ago made a full-time job of going on television to defend Kavanaugh. There’s Fifth Circuit Court of Appeals Judge James Ho, who is making a career out of basically being a Twitter troll in a robe. Trump crammed so many judges into those federal courts of appeal that he fully flipped three of them—the 11th, the Second, and the Third—from Democratic-appointed majorities to GOP ones.
Expanding the lower courts doesn’t just make strategic sense—it’s necessary for the swift and fair administration of justice. The Supreme Court takes roughly 2 percent of the applications that come before it because it can literally do whatever it wants.
The federal district courts and the federal courts of appeal, however, are courts of right: They have to take every case that comes up. Sure, there are procedural ways to streamline things, but in the end, they can’t pick and choose. This means those courts have far too many cases.
The federal district courts are so out of balance that as of the end of 2021, over 700,000 cases were pending in those district courts. That’s spread across only 667 judges. Of course, the federal courts of appeal saw over 46,000 cases filed in 2021, but Congress has only authorized 179 judges for those cases. More judges in those levels of the federal judiciary doesn’t just blunt the effects of Trump judges—it ensures more cases get heard and resolved more quickly. That’s an inherent good, but conservatives are going to howl about it nonetheless.
This brings me to the other critical aspect of shoring up democracy in this country: breaking the stranglehold conservatives have on the legislative branch even as we break their stranglehold on the judiciary. Chief Justice John Roberts gutted the Voting Rights Act in 2013 and, in 2019, threw up his hands and declared that it was just too hard to solve partisan gerrymandering. The federal courts are not going to fix voting. Only Congress can reinvigorate voting rights. Kill the filibuster, pass an outrageously comprehensive voting rights act, and break this terrible tyranny of the minority.
Legislation isn’t the solution to protecting abortion rights, at least not with the Congress we currently have. But the Biden administration isn’t entirely powerless here. Over 20 senators gave the administration a roadmap a month ago:
- First, increase access to medication abortion and information about medication abortion.
- Next, fund travel and ancillary support for people who have to leave their state to get abortion care.
- Then, create a reproductive health ombudsman in the Department of Health and Human Services.
- Fourth, enforce “free choice of provider” agreements so that Medicaid beneficiaries can seek family planning services from the providers they wish.
- Additionally, figure out how to ensure the safety and security of private personal health data, such as that used by period tracker apps.
- Finally—and this is the big one: Use federal property for abortion services, particularly in the states that ban abortion.
These are all actions that can happen without congressional approval, and while legislating via executive action is suboptimal, it’s what we’ve got to work with. It’s time for the administration to step up and make clear its commitment to reproductive health—leveraging both its executive power and the bully pulpit to advocate for Court reform.