A 10th Supreme Court Justice


  • Associate Supreme Court Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett have used the “shadow docket” to effect political change without public accountability.
  • Appointing President Obama as the 10th Supreme Court Justice would force the Court to have these controversial cases argued before the Court and in full view of the American public.

Six months before the 2016 Presidential election President Obama nominated Chief Judge Merrick Garland to the Supreme Court. Senate Majority Leader Mitch McConnell refused to allow a Senate confirmation hearing stating that “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction.”

Seven weeks before the 2020 November midterm elections President Trump nominated Judge Amy Coney Barrett to replace the recently deceased Supreme Court Justice Ginsburg.  Even though that Judge Barrett’s ascension to the Court would “fundamentally alter the direction of the Supreme Court” Senator McConnell ensured that Judge Barrett was sworn in as the newest Justice one week before the impending midterm election.

Most alarming were the statements made by 29 Republican Senators who agreed that Chief Judge Garland should not have been granted a Senate confirmation hearing while Judge Barrett should.

Recently both Senator Mitch McConnell and Senator Lindsey Graham, potentially the Republican Chairperson of the Senate’s Judiciary Committee, have implied that they would prevent any future Democrat President’s Supreme Court nominee from having a Senate confirmation hearing.

The Senate Republicans’ history of tailoring the confirmation process to the contemporary political circumstances is a rational response to their belief that the Supreme Court is simply another political entity that they must control with a super-majority of Justices if they hope to advance their national political agenda.

The Roberts Court had been complicit in this strategy by routinely invoking the “shadow docket,” a Supreme Court procedure in which a majority of Justices issue an edict without the need for a trial, writing an opinion, or announcing how the Justices voted; the entire process is shielded from public scrutiny.

The shadow docket has now been so abused by the 5 right-wing, activist Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett that even Chief Justice Roberts signed Associate Justice Kagan’s recent dissenting opinion condemning the Court’s flagrant misuse of the shadow docket.

The political tea leaves suggest that the Republicans will take control of the Senate in the November 2022 midterm elections. 

In light of the profound extra-judicial activism of the far-right, supermajority Supreme Court Associate Justices and the Senate Republicans promise to prohibit any Democrat Presidential Supreme Court nominee from having a confirmation hearing, the Democrats must now play offense.

President Biden needs to implement a strategy that will both reconstitute a more centrist Supreme Court while engendering enthusiasm for Democrat candidates.

I think this can be accomplished if President Biden implemented a plan which mimics Senator McConnell’s confirmation process of Judge Barrett.

Seven weeks before the November 2022 midterm election, President Biden should nominate President Barack Obama as the 10th Justice to the Supreme Court. 

President Biden should reiterate that the American public wants the Supreme Court Justices to ensure that their political opinions do not taint their judicial decisions. In this regard, the Court has egregiously failed, as the 5 right-wing Associate Justices have ignored legal precedents and used the shadow docket to advance their political agenda. Associate Justice Thomas has tainted the Court by neglecting to recuse himself when legally required to do so. His failure to adhere to Federal law in reporting the renumeration he and his wife received has also harmed the Court’s reputation and he likely violated Federal law.

Since 1946, Democrats controlled the White House for about 35 years while Republicans were in control for 40 years during which time the Democrats appointed 9 Supreme Court Justices while the Republicans appointed 24. Despite this historic advantage and having recently stolen two Supreme Court seats from the Democrats, the Senate Republicans have the audacity to deny Americans the opportunity to even hear from a future Democrat Presidential Supreme Court nominee during a Senate confirmation simply to spare the Republicans the embarrassment of having to vote against a qualified candidate, like Judge Ketanji Brown Jackson.

Putting President Obama on the Supreme Court would create a 5-5 tie whenever the five right-wing  Associate Justices inappropriately invoked the shadow docket and thereby force these controversial cases to be debated in a courtroom, as the process was designed. At trial, the conservative view would prevail as they would retain a 6:4 advantage, but at least there would be written opinions, dissents and a public vote.

Of course, the Republicans will scream that the Democrats are trying to destroy America’s democracy and that they will be forced to respond in kind by adding more Justices to the Court. The Democrats should offer to bipartisanly and irrevocably codify Senate rules regarding the nominating process for future Supreme Court nominees and to enact bipartisan legislation which would again limit the number of Supreme Court Justices at nine, with the caveat that these changes will go into effect after the 2024 Presidential election and after one of the 10 Supreme Court Justices leaves the bench.

Or the Democrat leadership could continue to operate by the old rules of politics and be steamrolled by the Republicans.

Hayward Zwerling



More reading:

Supreme Court Conservatives Try to Outrun Public Backlash” by Noah Feldman in The Washington Post & Bloomberg Opinion, 4/13/2011

Roberts Has Lost Control of the Supreme Court” by Steve Vladeck in The New York Times, 4/13/2022

The Supreme Court, Weaponized” by Linda Greenhouse in the New York Times, 12/16/21.

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