Expand the Court

Republicans must be getting nervous that Dems are not only going to win big next month but will also wipe out years of GOP plots and schemes by adding more justices to the Supreme Court. They are demanding that Joe Biden explain whether he will “pack” the court or not. Wingnut columnists like Hugh Hewitt are blubbering with outrage at the very idea.

Joe Biden isn’t saying, possibly because he’s not sure himself what he will do. I suspect he’d much rather appoint Justice Ginsburg’s replacement. And, anyway, he would need a Democratic Senate majority to pull off adding more justices to the Court. No point getting ahead of himself.

But the outraged Republicans need to look to themselves. Back in 2016 they were seriously considering reducing the number of justices to eight so that Hillary Clinton couldn’t replace Justice Scalia. Nina Totenberg reported for NPR on November 3, 2016:

With just days until the election, some Senate Republicans are suggesting that when it comes to the Supreme Court, eight is enough. Eight justices, that is.

For the first time, some Senate Republicans are saying that if Hillary Clinton is elected, the GOP should prevent anyone she nominates from being confirmed to fill the current court vacancy, or any future vacancy. …

… Senate Republican leader Mitch McConnell has not gone so far as to embrace a permanent blockade if Clinton is elected, but he set in motion the idea back in February.

Hours after the death of Justice Antonin Scalia was announced, McConnell issued a statement declaring that Republicans, who currently control the Senate, would block action on any Obama nominee.

You know the rest of that story.

Even professional wimp Ruth Marcus thinks that the Dems are justified in thinking about adding justices.

Republicans stole one seat when they refused to let President Barack Obama fill a vacancy created nine months before the 2016 election. Now they are poised to steal another, rushing through President Trump’s nominee with Election Day less than a month away.

If Democrats, in response, are entertaining the radical idea of expanding the size of the court, it’s hard to blame them; Republicans have stocked the court with one and soon two justices whose seats they were not entitled to fill. This is slow-motion court-packing in plain sight.

And it isn’t just the Supreme Court; it’s all manner of federal courts. According to Pew Research, almost a quarter of all federal judges in the U.S. are Trump appointees. This came about because Senate Republicans blocked many Obama nominations, giving “a raft of federal vacancies” to Trump. And then Mitch and the gang went into hyperdrive to ram through the nomination of anyone with a law degree who was young, nuts enough to please the Federalist Society, and breathing. Qualifications were not a consideration.

The purpose is clear: With enough hard-right judges on the bench, progressive policies can still be blocked even if Republicans lose Congress and the White House. This puts environmental protection and the future of the planet, voting rights, health care reform, reproductive rights, economic justice, all manner of equal protections, etc., in jeopardy for the next forty years. What Congress and the White House enact, the courts can nullify.

Seth Masket, a professor of political science and director of the Center on American Politics at the University of Denver, wrote in WaPo:

Before the end of the year, Amy Coney Barrett will probably be sworn in as a Supreme Court justice — and she may serve for decades. She will have been appointed by an impeached president who lost the popular vote in 2016 and may well continue in office after losing it again in 2020. She will almost certainly be approved by senators representing less than 45 percent of the American population.

Our nation is moving even deeper into minority rule: The House aside, the U.S. government is controlled by the less popular party in a polarized two-party system. We may call this unfair, but that would trivialize the problem. It is entirely permissible under the Constitution, and it is dangerous. When the majority of a nation’s citizens can’t get its candidates elected or its preferred policies passed, the government’s legitimacy is compromised and destabilizing pressure begins to build.

The Electoral College, two senators from each state regardless of population, and political gerrymandering to favor Republicans in House races means that Republicans can take take the White House and control Congress while earning fewer votes than Democrats. See, for example, Democrats got millions more votes – so how did Republicans win the Senate?

See also How the Minority Wins by Vann R. Newkirk II at The Atlantic. Very basically, this tells the story of how the Republicans, a few years back, began to reflect on the changing demographics of the nation and wrestled with the problem of being the party of white men. Their response was not to expand their appeal to other voters but find ways to win with a minority — gerrymandering, voter suppression, sympathetic judges.

Seth Masket continues,

When well more than half the country votes for one result — over and over — and continues to get another, the situation is unsustainable. This is how a government loses its legitimacy. Governments worldwide facing legitimacy crises have been faced with struggling to govern, as we saw in the Philippines under Ferdinand Marcos, or brutally cracking down on protests, as we saw in Egypt under Hosni Mubarak and continue to see under Abdel Fatah al-Sissi. It’s an ugly situation, and the United States is not immune.

“Protest and unrest are a predictable outcome when a population thinks the political system is completely unresponsive to its needs,” Masket writes. Ironically, even though Republicans claim to be the ones who want law and order, keeping them in power just escalates unrest. Tyranny by a minority is not sustainable, and it’s not democracy. (No wonder Mike Lee doesn’t like democracy.)

I’m saying that for the good of the country, if the Democrats can take back the Senate and White House they must not let the court situation stand. If Amy Barrett is seated they must add more justices to the Supreme Court, and I’m saying at least four, not just two. Two would still give us a six-five conservative majority.

People are concerned that this would just begin a court-packing war, and Republicans will add more judges when they take the government back. That’s why voting rights and other pro-democracy reforms have to be a priority for the next Democratic Congress. Then, unless they pull back from right-wing extremism, they’ll have a harder time taking the government back.

Also, Jacob Hale Russell, an assistant professor of law at Rutgers, recently argued in Time that there need to be 27 justices on the Supreme Court. I’ll let you read his entire argument for how he arrived at the number 27, but his basic argument is that with more justices it takes away the impact of the one to four appointments most presidents make.

And since all federal judges serve lifetime appointments, per the Constitution, I say add more judges to other courts also, as needed.

Will Joe Biden go along with this? I do not know. He may not know, either. He’s not a revolutionary sort of guy but is more comfortable cruising down the middle of the mainstream. But I believe, I hope, that if all our election hopes come to pass and Barrett is on the Court, that there will be enough pro-court-expanding sentiment among Democrats to persuade him to act.

Amy Barrett’s confirmation hearings start tomorrow. See also E.J. Dionne, The GOP is lying its way toward expanding the Supreme Court’s conservative majority.

The Supreme Court in 1894, a very conservative crew.