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The fact that the U.S. Supreme Court has a conservative majority is not new. In fact, justices on the right have been steering the court’s direction for decades. The political world grew accustomed to a seemingly endless stream of predictable 5-4 rulings on many of the major legal disputes of the day.
But the differences between a five-member majority and a six-member majority aren’t just quantitative.
The Washington Post’s Ruth Marcus published a memorable piece late last year, about a month after Justice Amy Coney Barrett was rushed onto the bench in indefensible circumstances, reflecting on the “Rule of Six.”
“A five-justice majority is inherently fragile,” Marcus explained. “It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps. A six-justice majority is a different animal.”
With six justices on a nine-member court, the right can be unrestrained. It need not concern itself with limits or the need for incremental changes. It can be bold. It can be indifferent toward those who might raise objections. It gives the right strength that might otherwise need to be checked. It can do as it pleases.
And so it did. Democratic Rep. Jamie Raskin, a constitutional scholar before getting elected to Congress, told MSNBC’s Chris Hayes last night that the current Supreme Court “is on an absolute reactionary rampage.”
That’s more than fair given what Americans saw from the Republican-appointed justices in their just completed term. The headline on HuffPost’s Jonathan Cohn’s report read, “It Took The Supreme Court Just 10 Days To Change America As We Know It.”
The Supreme Court is allegedly the most passive, slowest-moving branch of government. But in a little more than one week’s time, the court has arguably rewritten as much American law as any Congress or presidency in recent memory.
From reproductive rights to gun violence, from climate to the separation of church and state, the emboldened far-right majority decided to change the United States — because it could.
What’s more, as Americans catch their collective breath, it’s important to acknowledge the difficult fact that the unrestrained Republican-appointed justices will not slow down. As my MSNBC colleague Ja’han Jones noted, “We know this court has more cruelty in store.” That’s undeniably true — not only because the justices are poised to consider a ridiculous case about the so-called “independent state legislature” doctrine, but because they also have their eyes on a series of other priorities.
To see this as a short-term bender is a mistake. We’re talking about an offensive that's likely to last decades. These justices will continue to alter the American experience for much of the population, as they’ve already begun to do.
What’s less clear is the extent to which the Supreme Court’s “absolute reactionary rampage” will affect the debate over possible reforms.
In 2020, there was some discussion during the election about proposed institutional changes, including the prospect of expanding the bench in response to Republican abuses. Much of the Democratic establishment resisted such talk, seeing the reforms as a bridge too far.
But that conversation dealt with abstractions. No one had yet seen the “Rule of Six” in action. There were predictions about how extreme the Supreme Court’s far-right majority would be, but there’s a difference between expecting radicalism and seeing its effects unfold over the course of 10 days.
So why not revisit the discussion and look anew at repairing an institution that’s gone too far?
Thomas Chatterton Williams, a contributing writer at The Atlantic, wrote on Twitter yesterday, “I hadn’t felt this until now, but the Supreme Court is out of control and Congress has to reign it in.” New York magazine’s Jon Chait came to a similar conclusion, arguing yesterday that Democrats “must reform” the Supreme Court in order to “save it.”
Congress has options; what it needs is political will. If the last two weeks haven’t altered the motivational calculus, what will?