15 Supreme Court Justices, 15 Federal Circuits Is the New Fight for 15

Like most people, I’m horrified at the reality that pregnant women in Texas now have to face if they don’t want to carry their pregnancies to full term. Even though the United States Supreme Court has the ability to block Texas’ Senate Bill 8 from going into effect until further judicial review has taken place, it has yet to do so as of Wednesday evening.

Like Welcome To Hell World’s Luke O’Neil recently described in his latest post, I’m just as incensed about Senate Bill 8’s provisions empowering rabid right-wing religious fanatics from filing lawsuits against abortion providers in hopes of getting a $10,000 bounty, as I am about the outright abortion ban itself (and let’s stop acting like there’s a meaningful window for women who are six weeks pregnant from actually getting abortions).

However, because the federal judiciary is the ultimate arbiter of law in the United States, and because the US Supreme Court is capable of halting or even overturning any state or federal law, Democrats — as the majority party in both houses of Congress and the party currently controlling the White House — have the ability to unilaterally stop Senate Bill 8 from taking effect if they truly want to protect the safety of women and girls across Texas. It’s a simple solution that only requires a majority vote.

15 Supreme Court justices. 15 federal circuits.

(Map of all 12 current federal circuit courts including the Washington DC circuit court)

The structure of the federal judiciary is based by region — each region of the US has its own federal circuit, and each circuit has its own district courts (for a total of 94 districts) under its court of appeals. While the US Supreme Court has the final say in judicial matters, it only hears a fraction of the cases litigated at the district and appellate levels. Every single federal judge serves for life, which means each judicial appointment is vitally important.

Because Article III, Section 1 of the US Constitution grants Congress the authority to create new federal circuit courts, a simple majority vote in the House and Senate would make it possible to expand the federal judiciary to 15 circuits, rather than 12, along with all the new district courts for each of those new circuits. Additionally, Democrats can expand the US Supreme Court from nine justices to 15 under that same Constitutional provision. The number of justices on the Supreme Court has been frozen at nine for more than 150 years. A lot has changed since then, why not that?

Taking action like this is a lot more difficult in the US Senate, which empowers the minority party to use the filibuster to stall everything short of budgetary matters with just 41 votes out of 100. Expanding the courts — which is clearly necessary given the blatant violations of civil rights seen in Texas’ Senate Bill 8 — won’t happen until we also succeed in eliminating the filibuster. As the Brookings Institution noted in this graphic, use of the filibuster hit an all-time high during the Obama administration, and continue to be fiercely deployed by Senate Minority Leader Mitch McConnell (R-Kentucky) during the Biden administration.

(Number of cloture motions filed in the Senate, from the 65th Congress to the 115th Congress)

Eliminating the filibuster can be done with just 50 senators and a tie-breaking vote from Vice President Kamala Harris, simply by establishing a new precedent. If a senator raises a point of order during a filibuster and argues that Republicans are violating Senate rules, and if 49 other senators and the Vice President (likely presiding over the session) agree, that effectively kills the filibuster. Then, the courts can be expanded, new district and circuit judges — as well as new Supreme Court justices — can be confirmed, and abortion protections can be written into federal law. As Adam Jentleson (deputy chief of staff to former Senate Majority Leader Harry Reid) tweeted, this is clearly necessary if we want to stop Republicans from rolling back Roe v. Wade.

Anyone telling you that Democrats have no choice but to throw up their hands and hope the 2022 elections go their way is lying to you. Democrats have a clear path in front of them to safeguard women’s rights. Whether or not they actually do it depends on their willpower.