Will Expanding SCOTUS Help Fix Post-Roe Texas?

The movement to add seats to the Supreme Court is gaining momentum (photo via Getty Images)

Early in June, Austin's own U.S. Rep. Greg Casar flew home from D.C. to take a controversial stance that's been gaining support in recent months. Standing beside Cecile Richards – former longtime Planned Parenthood president and daughter of famed Texas Governor Ann Richards – Casar called for Congress to add seats to the Supreme Court.

Planned Parenthood announced its support for adding seats last month, and Richards told the Chronicle that court expansion is dire. "My daughters have fewer rights than I did – and that is true for an entire generation of young women," she said. "We have lost the most fundamental right – the freedom to decide when or if to have a child. There is nothing more basic."

Casar's reasoning can be broken down like this: First, the Supreme Court in its public-facing actions has proved untrustworthy – as evidenced by the Dobbs decision, stripping away a constitutional right to abortion. Also, a lack of accountability for the unelected justices makes corruption easy – as demonstrated by the recent revelation that Justice Clarence Thomas has been secretly accepting luxury vacations from a billionaire for 20 years.

The Judiciary Act of 2023 would add four associate justices to the lopsidedly conservative court, and they would presumably be selected before Biden's presidency ends. But some legal scholars warn that adding seats is a short-term fix with erosive consequences – if Democrats add seats now, Republicans will later.

"And it would just be a race to the bottom, where eventually the court has 67 justices and no legitimacy. But that may be a glitch that some consider a feature," said Steve Vladeck, a UT Law professor whose focus is federal courts and whose New York Times bestselling book released last month, The Shadow Docket, details the disintegration of the court's transparency.

Casar disagrees with the premise that the court has legitimacy left to lose, or that a race to the bottom is a top concern. He thinks many Americans are in denial about the fact that "we're already living at the bottom." The Senate stalled to the point of blocking Obama's pick in Merrick Garland, Brett Kavanaugh got his seat despite credible sexual assault allegations, and Republicans worked to rush Amy Coney Barrett through at the eleventh hour of Donald Trump's presidency. So while Casar says he wants longer-term solutions such as a binding ethics code for the court and the elimination of lifetime appointments, he believes adding seats is an emergency "for people who need abortion care now, for those who know the climate crisis is here right now, for people who don't want to see Trump steal an election next year."

Something That’ll Stick

U.S. Rep. Lloyd Doggett – who served on the Texas Supreme Court for years before his career in Congress – is wary of adding seats. But because "things are so bad," he wouldn't rule out voting for the 2023 Judiciary Act – that is, if it had any chance of getting up to a floor vote.

To address the deeper issues that allow the court to act in partisan ways, Vladeck has a list of possible SCOTUS reforms at the ready, all of which he'd recommend before adding seats to the court. They include creating an inspector-general-like mechanism, which could investigate and ensure justices comply with ethics and financial disclosure rules. Another measure would create explicit standards SCOTUS would have to adhere to in emergency rulings, which don't require the detailed opinions and dissents that cases on the regular docket do; in fact, they need no explanation or even a public breakdown of how each justice voted. For years the court has been taking on more of these "shadow docket" decisions while issuing fewer decisions in cases that go through the full, public process than at any time since the 19th century.

There's an existing bill that checks off some of Vladeck's boxes: the Supreme Court Ethics, Recusal, and Transparency Act, introduced in February with Doggett as a co-sponsor. (He has co-sponsored similar bills in each Congress since 2013.) Federal judges in lower courts already must adhere to the Code of Conduct for United States Judges, but the Supremes don't. This act would require codes of conduct for SCOTUS and create a framework for complaints alleging violations of that code.

It would also create a judicial investigation panel; if such a system existed today, the court's investigation of Clarence Thomas' financial secrets, for example, would involve hearings held by that investigation panel with subpoenaed witnesses, sworn testimony, and a published report on their findings; it would still take an impeachment for a justice to lose their seat.

Ambition Must Counter Ambition

To Vladeck, the real issue is not any one reform that the public ought to coalesce around. "What folks should be clamoring for is a reinvigoration of the separation of powers," he said. "The issue is more generally to push Congress to reassert itself institutionally against the court, to use its myriad levers, levers it has pulled going back to the founding, not to change what the court is doing in individual cases but to rein the court in in some meaningful ways."

Speaking of the founding, it was Founding Father James Madison who said that to prevent the different branches' power from gradually concentrating in one branch, "ambition must be made to counteract ambition." And each branch of government must have the "constitutional means and personal motives to resist encroachments of the others."

At the moment, Congress has little ability to rein in the court because of political polarization. The House can only consider legislation that Republican Speaker Kevin McCarthy allows to reach the floor, and he'd likely block any bill concerning judiciary ethics, "because he doesn't want his members to have to take a vote that will make them look bad," Doggett said. "For those Republicans that are in the 18 districts that Biden won and a few others, it would be difficult for them to vote against. On its face, it's so obvious that federal judges in the highest court should comply with the same standards as other federal judges. It would be pretty indefensible."

In Doggett's nearly 30 years in Congress, he believes there were just four years when a judiciary ethics bill stood a chance: the first two years under President Obama and the first two years of President Biden. Even then, the Senate had the filibuster, and priorities had to be chosen.

Codifying Roe – guaranteeing a con­sti­tu­tional right to abortion so it could not be left to the interpretation of the court – was not one of them. Doggett says it didn't seem essential. "The law was so clear and held up so many times by the Supreme Court, that it wasn't necessary to do that. ... Now we see how great the need is, but we lack the power to make the change."