One of the joys of my job is facilitating interesting conversations. Let me tell you the broader ramifications of one such recent episode.
A few months ago, we arranged for a great friend of FFRF, Ann Druyan, to meet virtually with members of the Congressional Freethought Caucus. Druyan is a science communicator extraordinaire, co-author of many impressive works with her late husband Carl Sagan, writer, producer, director and driving force behind the “Cosmos” series. Druyan discussed “cathedral-building” activities — not constructing grand houses of worship, but long-term efforts to accomplish big goals, whether actual buildings, social movements or scientific achievement, such as interstellar exploration that can span multiple generations. (If you’d like the chance to hear Druyan chat about science, come to the FFRF convention Nov. 19–20, where she and her daughter, Sasha Sagan, close out the festivities. Registration ends on Oct. 31.)
Druyan’s words have had a profound effect on me, and have led FFRF in a certain direction. In this edition of FFRF’s Mark on the Hill, let’s talk about some of our “cathedral-building” legislative efforts, particularly judicial reform, and which pieces of legislation we are championing to build our secular cathedrals.
No loaf, half a loaf and a whole loaf
We learned in school how laws are supposed to be made: Our leaders gather, they discuss and identify the needs of the country with input from citizens, then hash out a compromise piece of legislation that alleviates a problem. The bill is eventually signed into law. Often our elected leaders say that the legislation is “half a loaf, and that’s better than no loaf.” Unfortunately, this idealized process is not what happens. There isn’t much room for compromise on issues such as climate change, separation of state and church, or access to reproductive health care.
America desperately needs full judicial reform. Many Americans see the federal judiciary system as broken, ineffective and not representing their interests. Among new bills on judicial reform, one is from Sen. Todd Young, R-Ind., and three others are from Rep. Hank Johnson, D-Ga., Congressional Freethought Caucus member and chair of the House Judiciary Subcommittee on Courts.
Young’s bill, S 2535, the JUDGES Act, is a good-faith and honest attempt to alleviate the judicial backlog by expanding the under-staffed lower courts with 77 new seats over the course of eight years. The bill is bipartisan and is co-sponsored by Sen. Chris Coons, D-Del. But it’s a “half a loaf” and it’s unlikely that Young can find 60 senators willing to break the filibuster and pass the bill out of the Senate.
Johnson, on his part, has introduced three judicial reform bills:
- Judiciary Act of 2021: It adds four associate justices to the Supreme Court of the United States, bringing the total number of Supreme Court justices from nine to 13.
- District Court Judgeships Act of 2021: It adds 203 new lower court judgeships across 47 judicial districts.
- Supreme Court Ethics Act: It requires the Judicial Conference (the national policymaking body for the federal courts) to create a code of ethics for Supreme Court justices that includes the Codes of Conduct for United States Judges, which already applies to federal judges below the Supreme Court level.
The Judiciary Act of 2021 is pertinent because the Supreme Court is not representing the needs of the American people. This is evident in its decision to use the shadow docket to uphold the Texas abortion ban and in its Fulton v. City of Philadelphia decision, which sanctioned religious exemptions for organizations operating with public funds. In a court that actually respects precedent and settled law, Fulton would never have even been heard.
When I was a kid, we were taught how different branches of the federal government check each other: The president can veto legislation, and Congress can override a veto. Yet one part of this equation was missing: the judiciary. What checks the judiciary if it moves too far away from the people? Congress can set the number of judges without a constitutional amendment. The number of justices has changed seven times in American history. The number of Supreme Court justices used to be tied to the number of judicial circuits (justices each overseeing one circuit). Now there are 13 circuits. There should be 13 justices, and that is what the Judiciary Act of 2021 seeks to do.
The District Court Judgeships Act of 2021 addresses the massive backlog due to a shortage of federal judges in the lowest federal courts. Adding 203 lower court judges will help.
For decades, Congress used a threshold of 400 case filings per judgeship when determining whether a judicial district needed additional judgeships. In 1993, the threshold was raised to 430 filings in an effort to control the growth of judgeship recommendations. The District Court Judgeships Act of 2021 reverts to the original standard of 400 case filings per judgeship to relieve these overburdened courts and improve access to justice.
The Supreme Court Ethics Act would require the Judicial Conference of the United States to create a code of ethics, binding the justices of the Supreme Court to common-sense standards that have applied to other federal judges for decades.
What should we do? Do we pursue the half loaf (Young bill) or the full loaf (Johnson bills)? Both have the same likelihood of passing given the current makeup and climate in Congress, which is not high.
My strategic view is to pursue the Johnson bills, which FFRF has endorsed. They have a lot of positive qualities that I look for in legislation: They solve or heavily alleviate a problem, and they are easy to understand. Gaining support for these bills is the cathedral-building part. Our job is to make the case to Congress for these pieces of legislation over time. If the mood, makeup or congressional rules change, we can always modify our tactics.
More secular cathedral-building efforts from FFRF in the future
In the next few months, we plan to continue advancing new legislative proposals that are bold, such as reining in religious health care groups, launching campaigns on the separation of state and church, removing tax advantages of churches and requiring them to play by the same rules as secular organizations, and developing ways to hold elected officials accountable.
I hope you will join me on these long-term secular cathedral-building projects.
All the best,
Mark Dann
Director of Governmental Affairs
Freedom From Religion Foundation, Inc.