Expand the Supreme Court—Now! | Opinion

We've just learned that the six conservative justices on the Supreme Court are immune from anything resembling good sense.

They have granted a level of immunity not just beyond what former President Donald Trump asked for, but beyond all he could have dreamed.

The ridiculous decision, helped along by two Supreme Court justices—Clarence Thomas and Samuel Alito—with clear insurrectionist sympathies, makes it virtually impossible for Jack Smith to proceed with his cases and likely sabotages Fani Willis's case as well.

There is no need nor cause for this. Since 1789, when George Washington first took office, the presidency has been able to function without any concept of absolute immunity from criminal prosecution. In fact, as Justice Sonia Sotomayor pointed out in her blistering dissent, the founders specifically spelled out immunity protections for Congress, and could've chosen to carve out immunities for the president, yet chose not to. They had to deal with a king who acted with extreme privilege already.

The founders understood that immunity leads to impunity, which is the situation we have upon us now—both in terms of the impunity Trump is bound to show if he is put back into power and the impunity the court has continually shown over recent years.

By the court's ludicrous standard, so long as the president contends that whatever illegal or unethical act he does is related to his "official duties," he cannot be prosecuted or even investigated for it, and his official acts cannot be produced in a court of law to demonstrate his intent. To paraphrase Sotomayor, while this technically may not put the president above the law, it places him beyond it—a distinction without a difference.

Yet it's not just tyranny under a despotic president we have to fear, but also the suffering we'll continue to endure under the rogue institution that the Supreme Court has become, having ventured far from its mission to protect our constitutional rights. Recent reports about the "gifts" Thomas and Alito have received have made clear just how corrupt the court is, and although the justices claim to not be politically or religiously motivated, those claims are transparently false. We are all suffering under the yolk of their conservative orthodoxy.

We are the only nation on Earth with lifetime appointments for our highest court, and with good reason. Lifetime appointments work against every reasonable democratic principle. Right now, out of the nine justices turning our republic into a mockery, three were appointed by a president who did not win the popular vote (including one seat, Neil Gorsuch's, that was obviously stolen). Clarence Thomas has been there since 1991, which means that if you were born after 1970, you never had the chance to vote for the president who appointed him. Alito and John Roberts have both been on the bench for over 18 years.

The Constitution does not specify lifetime appointments, but only that justices serve "during good behavior." The Constitution also does not, in any way, say that there can only be nine justices on the Supreme Court; Congress gets to determine that. It is only tradition that has kept the number at nine since 1869.

It's much like the tradition of stoning people in Shirley Jackson's classic story, The Lottery. We're killing ourselves with our foolishness.

One of the things that appeals most to Trump's supporters, as deluded as they are, is that he represents going against the status quo. Democrats, who are supposed to constitute the progressive side of the aisle, are often afraid to propose the changes we actually need to address the fact that our Constitution is inadequate.

If anyone brings up the idea of expanding the Supreme Court, they're immediately shouted down with fears that we'll be accused of "court-packing," like former President Franklin D. Roosevelt. Well, FDR managed to get elected twice more after his "court-packing scheme," so I guess it didn't hurt him too much.

And here's a little secret for the Democrats—If you want to inspire people, you should try actually standing for something. If you want to avoid not just Trump but the next Trump, address the constitutional inadequacies that created the crisis in the first place, like the Electoral College, the first-past-the-post electoral system, and yes, the Supreme Court.

How exactly are you going to stop the conservative lock on the court? You can preach against it, but you need an actual plan. That plan should be to take back Congress and pass legislation expanding the court. That's what Democrats should be campaigning on—real reform.

It's more ethical, at least, than President Joe Biden ordering the six conservatives on the court arrested as an "official act."

Ross Rosenfeld is a political writer and educator based on Long Island. Follow Ross on Substack.

The views expressed in this article are the writer's own.