Jennifer Rubin of WaPo asserts an assessment of SCOTUS that I fear isn’t quite accurate in detail:
In departing from the authentic judicial review, the right-wing majority unsurprisingly produces results perfectly aligned with the right’s agenda on hot-button topics. (By the law of averages, its “analysis” should occasionally favor the other side.) When foretelling a case’s outcome or following the majority’s “reasoning” requires a crib sheet on GOP political aims, something is wrong.
Right off the bat I can think of two decisions that have appalled conservatives: McGirt v. Oklahoma, in which judicial jurisdiction over much of Oklahoma was taken away from the State and given to the Five Civilized Tribes, as I understand it, and the anti-gerrymandering case of Allen v. Milligan, which, although caveat-laden, held that Alabama’s newly redrawn congressional districts were likely illegal and must be redrawn, a result echoed in its ultimate refusal to hear Ardoin v. Robinson, in which a lower court had ruled Louisiana’s redrawn congressional districts were illegal and must be redrawn.
All that said, Rubin’s point is substantive and applicable. The question is what to do? Court-packing is a favored answer for progressives, but I fear that it just looks like cheating to independents and moderate Republicans. It might seem nevertheless justified, given the problematic history of nomination and confirmation of Justices Gorsuch and Barrett, which I’ve addressed elsewhere, but the public’s attention is limited, and the left coming out looking like cheaters won’t benefit them.
But litigants can bring a measure of pressure to bear. While those of a short-term frame of mind may think that it’s ok to transform SCOTUS into a money game of buying votes (see the scandals attending Thomas and Alito), because they cannot imagine any bleed over into other parts of society, wise litigants will realize that is a plum-fool’s position. Putting SCOTUS Justices’ votes up for sale risks judicial chaos, reduces predictability, reduces societal agreement on what constitutes corruption, and may even put Justices’ lives at risk.
In fact, bold litigants may want to join forces with their erstwhile opponents in asking that Justices Thomas and Alito recuse themselves from the litigants’ cases, and for this reason:
Upon assessment of our financial resources, as well as the accompanying legal liabilities, we have come to realize that we cannot afford to purchase the votes of these SCOTUS justices.
The professional reputation of a vote seller.
The first employment of this recusal request would engender outrage from Thomas and Alito, but, by the fifth such request, it should become obvious to them that the respect accorded to them automatically as SCOTUS Justices is decaying rapidly.
Either one or even both might resign short thereafter, to the benefit of future litigants and the lower courts. Chief Justice Roberts might even follow, as it’s become clear, since Dobbs, that his leadership is a failure, and he’s reportedly quite the legacy-hound.
This illuminates another failing of court-packing: the important lesson of punishment. Professional ostracism is an important corrective when facts are undisputed. It must be used.
