Nuke The Court, Tactically
A strategy to surgically remove Justices Kavanaugh and Gorsuch and reaffirm Roe.
Calls for ending the filibuster and packing the Supreme Court are growing. Such tactics will backfire against Democrats when they lose control of the House and White House, which is likely by 2024. Court-packing is the equivalent of all-out strategic nuclear lawfare. Our aim should be to drop a tactical nuke on the Court before considering more extreme measures.
I think there may be a way to surgically remove the malignant Justices, Kavanaugh and Gorsuch. The traditional impeachment process requires a two-thirds super-majority in the Senate to convict, which is not going to happen, so we need to get creative. I have not looked into the details of the legal issues yet but, at face value, the Constitution does not prohibit removing Justices using a method other than impeachment. Article II, Section 4 reads, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Emphasis added.) The argument is the clause makes impeachment sufficient but not necessary to remove civil officers like the Justices. After all, the Constitution does not say civil officers “shall be removed from Office only on Impeachment.” Therefore, the Constitution leaves open the possibility of Congress creating a second mechanism to remove Justices.
The rough idea of the strategy is as follows:
The House passes a bill requiring annual review of Supreme Court Justices for “good behavior.” (Article III, Section 1.) The bill codifies what constitutes good behavior by enumerating without limitation some examples of bad behavior, such as misleading the Senate during confirmation. Further, the bill requires a Justice be removed from the Court if a simple majority in the House and Senate find the Justice committed bad behavior. The bill should make clear Congress's authority to define what constitutes good and not-good behavior is nonjusticiable (viz., not subject to judicial review and interpretation by the Court.)
Democrats and Independents in the Senate persuade Senator Collins to use “reform-by-ruling” (a.k.a. the nuclear option) to eliminate the filibuster specifically and only for the vote on the House's good behavior bill, allowing a simple majority in the Senate to pass the bill.
The House launches an immediate investigation of Justices Kavanaugh and Gorsuch regarding their false statements to the Senate during their confirmation hearings.
President Biden publicly promises Senator Collins he will appoint two conservative Justices to the Court should she vote in favor of finding the Justices are not holding their office during good behavior.
The House and Senate vote on the Justices’ bad behavior before the mid-term elections, while Democrats still have a majority in the House.
President Biden nominates two conservative Justices who affirm Roe is good precedent and that Dobbs is bad law.
The Senate consents to the appointment of two new Justices to replace Justices Kavanaugh and Gorsuch by simple majority using Rule XXII.
Lastly, the House and Senate modify the good behavior bill to require more than a simple majority to remove Justices for bad behavior.
If successful, the outcome of this strategy would be a 6-3 majority of Justices on the Court who recognize Roe as controlling precedent. A test case could then be brought before the Court in the expectation the Chief Justice will abide by his dissent-in-part by striking down the part of Dobbs that overturned Roe. The Chief Justice will vote to reinstate Roe, and encourage the new, junior Justices to vote with him, if he cares about protecting the institution of the Supreme Court. Failure to do so when given the opportunity by both co-equal branches of government would cement the illegitimacy of the Court and justify court-packing or other extreme measures.
If viable, this strategy needs to happen now, before the mid-terms. Congresswoman Pelosi's idea to use Dobbs as an election tool in the mere hope Democrats win the House and Senate is self-serving and strategically pathetic. Very few people will change their vote because of the Court's decision.