We are witnessing a critical moment in our nation’s history. Over the past few months, we have found ourselves looking inward at the traditional pillars of society, re-evaluating their fairness and justness.
A new organization, the BC Law Chapter of the People’s Parity Project, aims to evaluate and disable injustices within the legal community from the inside out. Writing a guest post today are organization leaders Daniel McLaughlin and Will Petrone, discussing court reform and the organization in general. If you are interested in getting involved with the BC chapter of the People’s Parity Project, contact bcparity@gmail.com.
Before we came to law school, many of us probably thought that the law and the legal system were inherently fair, and judges and justices were non-political. But as law students, we have some insight into the system, and as we’ve progressed through our law school careers, many of us have been surprised to see that judges are human. And importantly, the judiciary is not as insulated from politics and biases as we had once thought. These days, the Court is clearly politicized, and right now in particular, it is dominating the news cycle. Although most Americans think that the next president should fill the seat, Senate Republicans, representing less than half of the U.S. population, have confirmed Amy Coney Barrett’s appointment to the U.S. Supreme Court. Conservative justices now have a 6-3 majority, and are posed to threaten a woman’s right to choose, the Affordable Care Act, and so much more.
Fortunately, law school’s peek behind the curtain allows us a sliver of hope. Court reform is possible, and it would make sure that the death of one justice does not pose such a drastic threat to civil rights, our environment, and health care for all. It would also help to make sure that courts are not able to block the progress the majority of this country believes is necessary and wants to see. With the election so close at hand, it’s all the more important to advocate for these reforms to the candidates who seek to secure our votes, and channel our frustrations with the current system into momentum for change.
Court reform could mean adding justices to the Supreme Court. While the Supreme Court has consisted of nine justices for the majority of its existence, nothing in the Constitution actually requires a specific number. Known as “court packing,” this is one of the more popular and well-known court reform strategies, advocated for by popular progressive members of Congress such as Congresswoman Alexandria Ocasio-Cortez (D-NY-14), or “AOC,” and Senator Ed Markey, BC Law ‘72 (D-MA). Establishment Democrats are starting to warm to the idea, seeing the recent Republican tactics as court packing by another name. While Joe Biden has not endorsed this idea, he agrees court reform is essential. We should be careful about relying on this strategy alone, however, given the Federalists Society’s success at funneling conservative justices onto the Supreme Court, and the Court’s historical anti-democratic nature.
Reform could also mean implementing term limits. The average length of a justice’s term is longer now than ever before, reaching an average of 24 years. While the Supreme Court has always been a political institution, the extreme length of each Justice’s tenure has led to increasingly entrenched political power of certain parties. Currently, the most popular term-limit proposal has been an 18-year term, leaving a staggered vacancy every two years that allows each presidential term to bring in two new justices. Ideally, term limits can lead to much more democratic control over the Supreme Court, as opposed to the current dartboard method of waiting for a justice’s demise.
Finally, court reform could mean limiting the cases that the Supreme Court can hear. One way of accomplishing this is called “jurisdiction channeling.” Congress is permitted, to a certain extent, to determine how their legislation is adjudicated. For example, when Congress passed the Emergency Price Control Act of 1942 they established a new court called the Emergency Court of Appeals. All claims for equitable relief from the price control legislation had to be heard through this new court, and the Supreme Court could only hear appeals from the new court that Congress had created. This move was upheld by the Supreme Court itself in Lockerty v. Phillips, 319 U.S. 182 (1943). Jurisdiction channeling presents a way for Congress to safeguard its legislation no matter the Court’s composition. BC Law’s Kent Greenfield argued just this in The New York Times last week, putting forward the idea that Congress should establish a new Constitutional Court with the special purpose of deciding constitutional questions. As argued by Professor Greenfield, such a court is within Congress’s power to create and avoids many issues present in other methods of court reform.
Regardless of the specific approach, court reform is essential. The People’s Parity Project (PPP) is a national organization that was founded in 2018. One of the organization’s first tasks was to fight the confirmation of now-Justice Brett Kavanaugh. PPP is now at the forefront of the court reform movement, and is also leading the way in reforming the legal profession. This reform means tackling forced arbitration, coercive contracts, and harassment of judicial clerks. And they’re also working on making legal education more just, for current law students and for all future generations of lawyers.
You don’t have to look any further for a way to get involved in PPP’s work. There is a brand new BC chapter of PPP right on campus. And with the founding chapter of PPP just down the road at Harvard Law, we are working to dive right into strong partnerships that will allow us to help make sure the courts, the legal profession, and legal education are as equal and as just as we used to think they were. This isn’t idealism, it’s the kind of determination and resolve that make the world a better place.
If you would like to get involved, send us an email at bcparity@gmail.com.
BC Law: Impact 