The Supreme Court Was Broken Long Before the Leak
The NAACP Legal Defense and Educational Fund (LDF) is responsible for winning some of the most important cases in the history of the United States—but one of the most impressive testaments to the organization’s strength is the fact that it survived the “Summer of Eric,” back when I was one of its interns.
In June 1974 my boss gave me an assignment that I was unable to fail: I had to file a brief for the United States Supreme Court.
The following day, I boarded a plane for Washington. He must have been very confused, thinking back. What kind of twenty-three-year-old has business at the Supreme Court?
But he drove me there anyway—and I still remember what it felt like to see the building for the first time. Washington, my whole life, was in black-andwhite. It was a place on a screen where Dr. King marched; President Kennedy delivered speeches and Thurgood Marshall (founder of the NAACP LDF) had argued cases. While I was originally from New York, it was my first love. I remember being astonished when I saw the Capitol and the pillars of the Pantheon around me as I climbed up the Marble Palace steps.
I filed the brief and jumped into a taxi to return to the airport. I spent the whole flight looking through the pamphlet about the history of Supreme Court. My attention was riveted. Columbia Law was my first year. I’d read everything. Plessy v. Ferguson Dred Scott v. Sandford so I didn’t have the mistaken impression that the court was perfect, but I had also learned about Brown v. Board of Education Loving v. Virginia, Reynolds v. Sims Miranda v. Arizona.Even as an iconoclastic student of law, I believe the Supreme Court is fundamentally a force to good.
Since childhood, I have held a deep respect for the judiciary. It’s why I became a judge. And when the Supreme Court started hearing cases that bore my name, I never lost sight of how cool that twenty-three-year-old intern would have thought that was; how mesmerized, how stunned, how proud he would have been. As attorney general, two of my best days were when President Obama’s nominees to the court were confirmed; and I still remember how touched I was when I first entered the chamber to watch my colleagues at the United States Department of Justice argue consequential cases.
It is this kind of respect that I have for the highest court here in the country. With that background in mind, I argue that the Supreme Court’s mission is compromised and the institution requires reform.
Millions of Americans have been horrified—and terrified—to read a leaked draft Supreme Court opinion overturning Roe v. Wade. It is understandable why so much anger has occurred. I’ve felt it myself. Because if anything remotely resembling what Justice Samuel Alito wrote becomes an official decision, it will be among the worst in the history of our country, an attack on women and on every citizen’s right to privacy we assumed was ours.
But, in all honesty, the decline of The Court—and its waning legitimacy—was clear long before.
For decades, the polarization of the Supreme Court has worried me—but reading the ruling in Shelby County v. Holder, The case that dissolved the Voting Rights Bill was what made me realise that the court was in a contemporary existential crisis. What, I wondered, could five lifetime-appointed judges gut a law which had just been reauthorized in an historic bipartisan landslide by Congress? This was a law that has been supported by all presidents since Johnson and secured the vote for many millions of Americans for almost fifty years.
There were plenty of past Supreme Court rulings that I didn’t agree with—but at least with those, I believed the justices had come by their opinions honestly; that they had written them on the basis of their understanding of the Constitution.
With Shelby,However, it was difficult for me to believe that such a statement is still true. Because Congress had compiled such overwhelming evidence—thousands upon thousands of pages—that if the Voting Rights Act were overturned, access to the franchise would again come under attack. And in the end, that fact-finding was vindicated—not years down the line, but hours after Chief Justice Roberts announced his decision, when Texas moved forward with a suppressive bill that had previously been found to be unconstitutional.
It was then that I realized I needed to end a long-standing tradition.
As a former attorney general and a member of both parties, I was eager to present a case to the Supreme Court. And I was especially excited about the fact that I was all but guaranteed to win—since the attorney general is almost always sent to argue one of the relatively easy cases on the docket, leaving the big ones to the solicitor general.
But after Shelby, I came to the conclusion that I couldn’t do it. I didn’t want to pretend that this was a Supreme Court like any other; that the Justices were good-faith actors; that a tradition should be followed. Without a valid basis they had undermined our fundamental right. This was a right Americans from past generations died for: the right of voting. And my protest—a silent protest I haven’t told many people about until now—was that I wouldn’t appear in that court as attorney general of the United States.
In the years since, the erosion of trust in the Supreme Court has accelerated—as the court’s expanded conservative wing has not only continued attacking the right to vote but also delivered dubious decisions on everything from President Trump’s Muslim ban, which they declared constitutional, to Obamacare’s attempts to protect reproductive rights, which they declared unconstitutional, a harbinger of how they would begin to gut Roe v. Wade Over the next years, the American people will continue to reject the right-to-choose option.
Some of these minoritarian rulings were in no small part the result of the fact that Republicans in the Senate, led by Mitch McConnell, had managed to steal a seat on the court, blocking President Obama’s choice, Merrick Garland, because, they claimed, he was nominated too close to the presidential election—in March 2020, 237 days before polls closed—but confirming Amy Coney Barrett, President Trump’s pick, even though she was nominated in September 2020, months later in the election cycle, when millions of people were already voting. It’s the kind of hypocrisy that makes the American people hate politics. And I don’t blame them. You wouldn’t believe what you saw in the draft opinion this week. It was a very over-the-top language.
The good news is that it’s not hard to reform the Supreme Court—in fact, it has been restructured over and over again throughout American history. And you wouldn’t need a constitutional amendment to make it happen. It could be done through legislation.
But before diving into solutions, it’s worth clarifying what, exactly, is at the heart of the trouble with the Supreme Court as it’s currently constructed.
One of the best ideas for a solution to many court problems is life tenure.
Our founders wanted Supreme Court justices to be allowed to continue their work until death or retirement, even though elected officials would need to fight for office. The theory was that this would preserve the independence of the justices—not only from the other branches of government, which founders like Alexander Hamilton feared would “overpower, awe, or influence” the judicial branch, but also from the public. They wanted justices to have the ability to resolve cases on the basis of their understanding of Constitution and not because they were trying to gain favor or win another term.
This all made sense—but there was one problem: the number of justices appointed by each president wound up being completely arbitrary. For example, Franklin Delano Roosevelt made eight nominations for the court while Zachary Taylor and Andrew Johnson made none.
At first, this wasn’t that big a deal, because presidents had a hard time anticipating the ideologies of the justices they appointed—and so the court did not often swing too far to either side. That’s why, from George Washington’s presidency through Abraham Lincoln’s, the Senate rarely exercised its confirmation authority to advise on and consent to Supreme Court nominees, generally signing off on them by voice vote.
Plus: People didn’t live that long back when America was founded, which meant that on average, vacancies came about around twice as frequently as they do today. This made battles for Supreme Court seats less contentious and ensured the court wouldn’t be dominated by any one ideology or group of justices for too long.
As you know, this has changed in recent years—for several reasons.
One, justices are more likely to live longer than others, which makes vacancies less common. This means that the stakes for each of them is extremely high. The polarization of Congress means that almost every decision and debate has become antagonistic. Even the justices are now adopting a partisan approach when it comes to their retirement: The vast majority of those who served in this position died early in American history. However, over the past 50 years, all five of the justices have decided to retire. In general, they chose for their retirement to occur while a president who supports their ideology was in office.
Naturally, this has led to an increase in perceived partisanship at the bench.
Both parties treated each recent nomination (from Garland to Gorsuch, Kavanaugh, Barrett, Brown Jackson) as a battle for the country’s future. It’s an untenable state, but thankfully, it’s in our power to change it.
Here’s how I would fix the Supreme Court: In an ideal world, I would expand its size to counter the skullduggery of Republicans in stealing two Supreme Court seats. But, even if that didn’t happen, I would reform the way justices are nominated altogether. Is that what it would look like?
First, I would make sure that every president has the opportunity to appoint the same number of justices per term: two—one in the first year, one in the third. It would ensure that the courts balance is determined by people’s will, not God’s timing or acts of God. Also, I’d require that the Senate votes on these nominees within two month of their announcement. That way senators will have a greater chance to judge each justice on merit. It won’t be easy for them leave an open vacancy until a new president is elected. (The Senate could, theoretically, reject each of a president’s nominees every two months, but over time, that would carry tremendous political costs.)
A second reason is that I believe eighteen year terms are more sensible than life tenure. Like Chief Justice John Roberts wrote once:
In a time before people lived as long as we do today, the Framers established life tenure. It was rare to find a judge who could be kept out of the ordinary currents for more than twenty-five years or 30 years back in those days, but it is now commonplace. Federal judges could be given a term for fifteen years to ensure they don’t lose touch with the real world after many decades in ivory tower life. This would allow for a greater and more frequent turnover of judges. I believe both of these developments are healthy.
No matter our disagreements, on this issue, he couldn’t be more right. And the people of this country agree—with polls showing more than three in four Americans opposed to life tenure. That’s because it’s common sense that no one should be trusted in a position of such enormous authority for life, especially given how much longer people are living these days.
This is to give context: Over the next century, justices will have an average tenure that doubles. This would, in turn, make vacancies even more rare—and the fights over them even more high stakes, further dooming the Supreme Court to a perpetual state of conflict.
The 18-year term would be sufficient to protect justices against political whims. With appointments occurring every two years, we would be able to maintain a Supreme Court of nine justices over the long-term, regardless of how many of the current bench members retire. (It is because I, and not the chief justice, am for 18-year terms, rather than 15-year, that would allow us to maintain a changing court size.
The policies would be a win for all parties involved—for senators who could once again advise on and consent to nominations with an eye toward what’s good for America, not what’s good for their party; for justices, who could focus on doing their jobs without having to think about when, where, and how they are going to step aside; and for the American people, whose faith in the highest court in the land—and whose rights, including the right to choose—could be restored.
I’ll be honest: if I were a law school student today and I were asked to file a brief at the Supreme Court, I’m not sure I would have that same feeling in my heart that I did all those decades ago—and that’s a shame. The judicial system, which is one reason America is so unique, has also been one of the main reasons why I feel so honored to dedicate my life to this country.
No, it’s never been perfect, and I knew that, even as a 23-year-old walking up those marble steps for the first time. Yet, I have never doubted my conviction that all nine of those who sat down on that bench were trying to make America a better place every single day.
That would make me feel so happy.
Adapted from the book OUR UNFINISHED MARCH: The Violent Past and Imperiled Future of the Vote—A History, a Crisis, a Plan by Eric Holder and Sam Koppelman, to be published May 10. Copyright © 2022 by Eric H. Holder, Jr. Publication by One World Inc., a Random House imprint. Penguin Random House LLC.
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