WASHINGTON, D.C., July 20, 2021 – Today, Alliance for Justice Founder and President Nan Aron testified before President Biden’s Commission on the Supreme Court. In her full written testimony, Aron called upon the Commission to recognize the dire need for Supreme Court reform in the wake of the current Court’s continued partisan assault on democracy and voting rights. Aron noted that since Bush v. Gore, the Court’s conservative majority has frequently skewed the law and upended decades of precedent in of support of partisan gerrymandering, the erosion of critical protections for voting rights, and weakening the power of unions. These decisions have had the direct effect of benefiting the Republican Party and disadvantaging Democrats.
In addition to the Court’s partisan attacks on democracy itself, Aron noted that the Court’s conservatives have aggressively used their power to enact a policy agenda harming workers, consumers, women, people of color, and members of the LGBTQ community in favor of the wealthy and the powerful. This is part of a concerted strategy by Republican elected officials to use the courts to enact a policy agenda that they could never enact through popular support and the legislative process.
Describing a Court that has continuously abused its power to cement the political power of the Republican Party while abdicating its responsibility to uphold the rule of law, Aron noted that a failure to act will have dire impacts on the lives of millions of Americans, while further eroding the ability of the American people to address issues of public policy through their elected representatives. In response to these challenges, Aron called on the Commission to recognize the importance of desperately needed reforms including Court expansion, a code of ethics for Supreme Court Justices, and term limits.
Some notable excerpts from Aron’s remarks today are below.
On how the Court has changed in ways that demand reform:
“I understand the gravity of Court reform. In my over 40 years as head of AFJ, I would never before have thought I would be sitting before this Commission and advocating for court expansion. It is not something I ever contemplated. But I believe that at this point, there is truly no other choice. Because if the Court continues to undermine our democracy and continues to favor the wealthy and powerful and consistently erode any semblance of equal justice under the law, the only possible conclusion is that reform is imperative.”
On the overt politicization of the Court:
“It is long past time to be surprised when these Republican-appointed judges take sides. There is no longer any pretense that they are independent jurists rather than partisans. While most conservatives hide behind the banal platitude that they want ‘judges who will interpret the law, not make it’ the reality is they want no such jurist. Conservatives want movement lawyers who, once confirmed, will use their positions to hamper the ability of the American people, through their elected officials, to address critical issues. And that is precisely what has been done.”
On Republican lawmakers relying on the Court to accomplish their agenda:
“In the face of changing demographics that make it increasingly difficult for Republicans to obtain the support of a majority of voters, Republicans are using this undemocratic and partisan majority on the Court to cement their own power and enact an unpopular agenda that they cannot achieve legislatively. They are using the Republican-controlled Court to rig the system to keep themselves in charge long after a majority has repudiated them. As David Frum, a former George W. Bush advisor, wrote, ‘If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.’ Through their efforts to entrench their power within the Court, they have done just that.”
On the importance of expanding the Court:
“[W]e believe the most effective way to restore balance to our Court is through expansion, something that has been done time and time again in the past. Through a simple act of Congress, the Court can be made to actually reflect America and to adhere to our nation’s past practice of having one Supreme Court Justice per judicial circuit. Polling shows that a majority of Americans support expanding the Court, perhaps because doing so would remedy the institution’s clear partisanship and favoritism of corporate interests. And to be clear, expansion is not a tool to simply swing the Court the other way, but instead to eliminate its existing bias and help preserve democratic institutions by allowing the American people to self-govern and participate in fair and open elections. The need for reform is not about the judicial philosophy of the Justices, but about the growing and clear antagonism to democracy coming from Republican politicians and the jurists they put on the bench.”
On arguments about preserving the Court’s “norms”:
“Our focus on ‘norms’ is the same as elite lawyers praising Gorsuch because he is smart and polite — it misses the central point. It ignores the fact that the structure of the Court directly impacts the quality of people’s lives. The Constitution, our Court, our laws, can literally be a matter of life and death, and way too many before this Commission and in legal circles simply discuss norms.” […]
“The preoccupation with norms is detached from reality and fails to recognize the real, concrete harm that the Court is doing to the American people. Because what good are norms if those norms perpetuate a Court that continues to erode and eliminate the rights and protections of millions? Shouldn’t this indicate that these norms may not be worth adhering to?”
On the personal stakes of the current makeup of the Court:
“Over the years, I have gotten to know firsthand people affected by the law and by judges who all too often twist the law to side against workers and consumers, people like Lilly Ledbetter and Jack Gross, both of whom faced blatant discrimination in the workplace but were denied justice by the Supreme Court. I have seen a growing problem in our judiciary — a continued partisan takeover, a sharp politicization, and the development of a system that increasingly prevents the American people from governing themselves. It is a change that makes me fear for the legitimacy of the Court and the survival of the very principle of equal justice under the law.”