J. Scott Applewhite/AP Photo
The Supreme Court this week declared, by a 6-3 majority, that the 1964 Civil Rights Act protects LGBTQ people from workplace discrimination.
I’ve never been much of a fan of packing the Supreme Court. But then there has never been a situation like this one.
When FDR tried to add justices to the Supreme Court in 1937, it was the result of a conservative Court that he inherited overturning one piece of New Deal legislation after another, mostly based on archaic legal doctrines. After Roosevelt won a landslide victory at the polls in 1936, he proposed legislation allowing him to appoint one new justice for every justice over age 70 who failed to retire.
The controversial proposal never came to a vote. But that wasn’t necessary, because one justice, Owen Roberts, got the message. Roberts, a mostly conservative swing vote, switched sides. He deserted the conservative bloc in a key case upholding a Washington state minimum-wage law—the famous “switch in time that saved nine”—and the Court stopped overturning the New Deal.
FDR, unlike Barack Obama, did not have a Republican Senate that simply refused to confirm federal judges. Nor did Democrats have to reckon with a leader like Mitch McConnell, who blocked virtually all other legislative actions, but worked overtime after 2016 to pack the bench with far-right Republican judges. And of course, we’ve never faced a situation like the one that obtained when Obama in early 2016 deliberately appointed a moderate in Judge Merrick Garland to the high court, and McConnell refused to even grant him a hearing.
The Court has already lost substantial legitimacy.
If Joe Biden is elected president and the House and Senate go Democratic, a rigged Supreme Court could serve as an illegitimate roadblock. A good percentage of the federal bench was appointed under dubious circumstances. So there is a good case for expanding both the Supreme Court and other federal courts.
Recent events, however, suggest that justices still pay attention to the political winds, and at least two may follow the example of Owen Roberts in 1937. You have to assume that Justice Neil Gorsuch and Chief Justice John Roberts have been paying attention to shifting public opinion when it comes to social justice. Neither has ever been a champion of LGBTQ rights, yet they made up the 6-3 majority to hold that the 1964 Civil Rights Act protects LGBTQ people.
The Court is supposedly the last institution that is above politics. It isn’t.
