• Ryan O'Connell

Should Democrats UNpack the Supreme Court?

October 21, 2020

Ted Cruz and other Republican Senators have introduced a bill that would require a Constitutional amendment to change the size of the Supreme Court. Sen. Cruz and his colleagues are worried that the Democrats might “pack the Court” by adding more Justices, if they win a majority in the Senate. The Democrats could do so by simply amending the existing statute setting forth the number of Justices. Senator Cruz’s maneuver is like Donald Trump proposing a Constitutional amendment to ban lying in politics.

Under Sen. Mitch McConnell’s cynical leadership, the Republicans have already stacked and packed the Supreme Court, as well as many appellate Federal courts. They have violated long-standing Senate traditions and basic rules of fair play in government. So the proper question is: should the Democrats play hardball, too, and unpack the Court, by enlarging it? And the second question is: should Joe Biden stake out his position before the election?

The answers are no (at least not for now) and no. Democrats have every reason to be outraged. But righteous anger, like hope, is a state of mind, not a strategy. Biden should not give the Republicans any ammunition or limit his options.

Mitch McConnell Poisoned the Well

Some progressive Democrats have already clamored for expanding the Court. And Sen. Chuck Schumer, the minority leader in the Senate, warned that “all options are on the table,” after McConnell made it clear that he would ram through the nomination of Amy Coney Barret just a few weeks before the election. As Sen. Cruz’s gambit shows, the Republicans are trying to turn these comments against Democrats and paint them as wild-eyed radicals trying to politicize the Court.

You can understand why the Democrats are furious. McConnell has brazenly violated his own “rule” that a President cannot appoint a Supreme Court Justice in an election year. Furthermore, McConnell, Cruz and other Republican Senators have assiduously worked for many years to shift the Court to the right, and they have played dirty to accomplish their goal. It is beyond hypocrisy for them to raise the alarm now about court packing.

McConnell invented his “rule” to block President Barack Obama’s nomination of Merrick Garland to the Supreme Court in March 2016. Obama proposed Judge Garland 10 months before the election, but McConnell blocked any action on the nomination. The Senator airily declared that “the American people should decide” who would pick the next Supreme Court Justice. Since the Republicans held a majority in the Senate, Obama was stymied.

There was no precedent for McConnell’s stonewalling, which was a pure power play. The Republicans did not even pretend that they were objecting on the merits. Garland was a highly respected, moderate judge on the D.C. Circuit Court of Appeals, eminently qualified to serve on the Supreme Court.

From “Advise and Consent” to “Despise and Reject” in the Senate

Democrats were particularly embittered by the Garland debacle because McConnell had already waged an unprecedented, years-long war to block dozens of Obama’s candidates for district and appellate courts, including the D.C. Circuit. The Senate Republicans had even filibustered many nominees for cabinet positions, trying to hamstring the Obama Administration.

This was a radical shift in the Senate’s role. Previously, both Democrats and Republicans operated on the principle that a duly elected President had the right to appoint judges, assuming that they were qualified. Major battles erupted over some Supreme Court nominations, to be sure, but most judicial nominations sailed through the Senate.

As minority leader, McConnell blatantly abused the Senate’s power to “advise and consent” on nominations, shifting to a “despise and reject” approach. McConnell and his crew did not block nominees because of their qualifications…but because a Democratic President had nominated them. McConnell followed a scorched-earth, obstructionist policy, as he worked to reshape the Federal judiciary.

Even in Obama’s first term, when the Republicans were the minority in the Senate, the number of filibusters doubled, to over 80. Obama was able to appoint about 150 Federal judges in his first term. By contrast, George W. Bush and Donald Trump appointed about 200 judges in their first four years, and Bill Clinton was able to confirm 184 judges.

The Supreme Court Conservatives Are Radicals

The Supreme Court has already become so politicized that it has lost much of its claim to legitimacy as an impartial arbiter. Even with the late Justice Ruth Bader Ginsberg and other liberals on board, the court has shifted drastically to the right. Despite their pious pronouncements, the conservative Justices are judicial activists. They have issued several very dubious opinions, such as the Citizens United case, but their worst decision was gutting the Voting Rights Act of 1965.

In 2013, facing a challenge to the Act, the Court decided, on its own, that racism was no longer a problem in various southern states, so it scrapped Federal oversight of election practices there. But it is the role of Congress, not the Supreme Court, to conduct fact-finding. Furthermore, Congress had re-enacted the Act in 2006.

The decision was a major usurpation of Congress’ role—so much for the balance of power. And the result was predictable, as North Carolina and other states rushed to implement new laws that restricted voters’ rights. Not surprisingly, Republicans dominated the legislatures in all those states.

photo: Wikipedia Commons

This decision, and others, are “frankly reactionary”, as Professor Charles Fried of Harvard Law School wrote in the New York Times this week, and he added, “this impending six-person majority is poised to take a wrecking ball to generations of Supreme Court doctrine”. The current Court has not respected precedent or deferred to Congress in a number of important disputes over the last several years. The arrival of Amy Coney Barrett, an extremely conservative judge, will probably exacerbate that trend.

So Democrats have ample grounds to fear that the Court, with a new 6-3 conservative majority, might overturn Roe v. Wade and invalidate the Affordable Care Act, as well as restrict the power of the executive branch to regulate environmental matters.

Democrats Have a Secret Weapon—Public Opinion

But Democrats should focus on passing laws if they win the White House and the Senate, rather than changing the size of the Court. The Democrats have a key advantage: public opinion is on their side on many critical issues. The Republicans have fought so hard to control the judiciary because they know that their positions are not popular with voters.

Most Americans support the Affordable Care Act; in fact, they want it expanded. Most voters favor reasonable gun controls, a more aggressive approach to saving the environment, and higher taxes on wealthy Americans. Although abortion is a deeply divisive issue, a majority of Americans favor at least some access to abortion services in the first trimester.

That’s why Republicans in many states, and now the White House, try so hard to suppress voting rights. In a fair fight, they would lose most of the time, and they know it.

If Joe Biden wins the Presidential election and the Democrats gain a majority in the Senate, they should use their precious political capital to pass critical legislation in 2021-22. (If they don’t win the Senate, the issue will be moot.)

These measures could include:

  • An expanded Affordable Care Act, with an individual mandate and a “tax” to fund the program

  • A renewed Voting Rights Act, with clear findings of racial discrimination in election practices

  • A revised Clean Water and Clean Air Act, with specific delegations of authority to the Environmental Protection Agency

  • A huge infrastructure program, to get the economy moving and generate good working-class jobs

In other words, the Democrats should concentrate on delivering their agenda through legislation.

The Democrats will run the risk that this reactionary Supreme Court will overrule some of these initiatives. But history shows that the Justices on the Court are generally sensitive to public opinion, as they should be. If the Court did block some of these laws, then the Democrats could reconsider the question of changing the size of the Court. They might even be able to campaign on that issue.

For example, the Democrats could point out that in October 2016, Ted Cruz was ready to change the Court’s size. Fearing that Hillary Clinton would be elected President, Cruz suggested that the Senate should not consider anyone Clinton might nominate for the Court. That step would effectively have cut the number of Justices to eight, as Michelle Goldberg noted in the Times last week, but such an outcome would not have bothered Cruz. “There is certainly a long historical precedent for a Supreme Court with fewer justices”, Cruz said. But that was then, of course.

The Wall Street Democrat

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