The Supreme Court is poised to further weaken or flat-out overturn Roe v. Wade; the only question is which case, exactly, they’ll use to accomplish that result. Whether it’s challenges to Texas’s abortion ban that empowers bounty hunters to sue abortion providers into oblivion for cash prizes, or to Mississippi’s law that bans abortions after 15 weeks of gestation, this term will likely see the end of abortion rights as they’ve been understood for the past 50 years.
Most people know that the conservative justices on the Supreme Court have been picked specifically for their hostility to abortion rights. Sure, Maine Senator Susan Collins might pretend to be the only person on Earth who doesn’t know how the judges she votes to confirm will rule on abortion rights, but she’s lying to both herself and her gullible supporters. Donald Trump promised to only appoint justices who oppose abortion, senators like Missouri’s Josh Hawley promised to only confirm justices who oppose abortion, and nobody credible thinks that Republicans appoint or confirm justices who believe in reproductive freedom for women and girls.
I believe that there are, ultimately, six justices in favor of taking away abortion rights. But when the Texas ban first came before the Court, only five voted to let the law go forward. This result, along with wishcasting and rainbows scrawled by the likes of Harvard Law School professor Noah Feldman, has given some people the false hope that the future of abortion rights rests on the shoulders of just one justice. Feldman’s prediction is that that hypothetical “swing” voter is alleged attempted rapist Justice Brett Kavanaugh.
It’s a foolish analysis. The reason Chief Justice John Roberts didn’t join the majority in the Texas case is that the bill, SB8, is a crazy scheme that actually undermines the rule of law: It literally empowers private vigilantes to subvert constitutional rights in order to evade judicial review. Roberts doesn’t like SB8 because he thinks his Court is perfectly capable of forcing women to give birth against their will without help from the checkout guy at Publix. He doesn’t care about women’s rights; he cares about Court supremacy. Meanwhile, Kavanaugh has consistently indicated his hostility towards reproductive rights; he swings on this issue about as much as a man frozen in carbonite.
But Kavanaugh’s vote to allow Texas to implement its ban is particularly tough to take. It’s frankly monstrous to have a man credibly accused of attempted rape be the deciding vote to uphold a law that can force a teenage rape victim to give birth to their assailant’s child against their will. The sheer horror of watching Kavanaugh, of all people, use his power to force his will upon the women of Texas has led some on the left—at least in my social media feeds—to renew calls for his impeachment.
Those calls are not without merit. In addition to the alleged rape attempt, Kavanaugh has a sordid history that includes additional allegations of sexual misconduct and a complicated relationship with the truth, especially but not exclusively when under oath. Recently, Rhode Island Senator Sheldon Whitehouse demanded a new FBI investigation into Kavanaugh based in part on the news that despite receiving some 4,500 tips about Kavanaugh’s potential misconduct, the agency interviewed a whopping ten people by way of follow-up. The director of the FBI, Christopher Wray, was a classmate of Kavanaugh’s at Yale Law School and a fellow member of the Federalist Society.
I believe Kavanaugh is demonstrably unfit to hold a position of public trust. He doesn’t have the moral character required to host Jeopardy! But so long as Republicans continue to support him—and there’s no reason Republicans wouldn’t support him, as his judicial opinions always seem to magically align with their political agenda—removing him is nearly impossible.
The process to impeach a Supreme Court justice (or any federal judge) is the same as the process to impeach a president: They can be charged (impeached) by the House, and convicted and removed by a two-thirds majority in the Senate. This is, to put it delicately, not a thing that will happen while Mitch McConnell draws breath. Senate Republicans wouldn’t remove a Republican president who sent an armed mob of terrorists to murder them in their offices. There’s simply no reason to believe they would impeach a justice who brings them political victory simply because he’s an alleged liar and an alleged sexual predator. Lying and predating are features in the Republican theory of government, not crimes.
Plus, even if some Republicans could be brought around on impeachment, it’s unlikely that all the Democrats would fall in line. If all the allegations against Kavanaugh were proven beyond a reasonable doubt, you’d still have at least some Democrats—male Democrats, probably—saying things like, “Welp, he didn’t try to rape anybody while on the Supreme Court.” There are simply too many men, in both parties, who are eager to leave “youthful indiscretions” in their long-ago youths.
Politically, the far easier solution to the Kavanaugh problem is not to remove him but dilute him. And the way to do that is to expand the Court.
That’s the thing a lot of politicians and pundits don’t seem to get: Court expansion is the preferred constitutional solution to a Court that oversteps its mandate or thumbs its nose at the will of the people. Impeaching justices requires that a supermajority of political actors both agree that high crimes and misdemeanors have occurred, and be willing to do something about it. Term-limits, another favored solution of those who are worried about “partisan” “Court-packing,” likely requires an entire constitutional amendment that would have to be ratified by three-fourths of state legislatures. Right now, I wouldn’t be confident that I could get three-fourths of state legislatures to ratify the 13th Amendment.
A constitutional amendment limiting the lifetime power of Republicans’ chosen culture warriors, meanwhile, is basically a non-starter, even though most Americans actually support term limits. And even if you could force, shame, or convict Kavanaugh into an early retirement and replace him with Elisabeth Moss pretending to be June Osborne, it still wouldn’t stop conservative attacks on abortion, because again, John Roberts is still there.
By contrast, Court expansion would solve the problem, and only requires a simple piece of legislation. It has to pass both chambers of Congress and be signed by the president. It can be passed by a simple majority, provided Senate Democrats are at last willing to get rid of the filibuster. Both-sides media often portrays Court expansion as a drastic step that would somehow destroy the courts, and maybe even the republic, as we know it. In reality, Court expansion—not term limits, not impeachment, not egging the houses of Supreme Court justices—is the constitutional tool that lawmakers have used to adjust the Court’s size multiple times throughout history. It is both the simplest and the most effective solution to the otherwise intractable crisis of giving lifetime jobs to people who no longer respect the rule of law.
Passing a new Judiciary Act to expand the number of justices should be subject to the same 51-vote rule used to confirm Justice Neil Gorsuch, for whom McConnell eliminated the filibuster on Supreme Court nominations in 2017; Kavanaugh, despite all the allegations about his conduct; and Justice Amy Coney Barrett, whose confirmation vote took place after the election to replace the president who nominated her was already underway. Filibuster enthusiasts like Democratic senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona operate with the intellectual consistency of curdled milk, but their arguments to save the filibuster really shouldn’t hold water when it comes to a Court that has already been stacked with justices who owe their confirmations to its abolition.
The thing standing in the way of Court expansion is not a compromised FBI director or a matter of constitutional interpretation or the arcane rules of cloture championed by segregationists and wielded by Republicans today to hold the government hostage. The thing standing in the way is will. Right now, only two Democratic senators—Ed Markey of Massachusetts and Tina Smith of Minnesota—are sponsors of a bill that would add four seats to the Court. Where is everyone else? Democrats have the power and authority to protect women’s rights (and voting rights, and gay rights, and labor rights, and democracy itself). They lack only the resolve to do what needs to be done.
As the Court prepares to merrily set everything on fire this term, Democrats are looking at the constitutional fire extinguisher and thinking, It says we can only break the glass in case of an emergency, and we’re not sure burning our constituents’ rights at the stake qualifies. I know how to fix the courts. I don’t know how to fix the Democratic Party.