There are two enormous obstacles in the way of progressive reforms in this country, and I’m not talking about the presidency—that can be won every four years, and the Democratic nominee in 2020, whoever it is, should have a great chance of knocking off Trump. I’m certainly not talking about the House, which reflects the popular will with full accountability every two years…minus a bit of gerrymandering here and there. No, the two intractable parts of our national government that can’t be easily overturned by elections of willpower are the U.S. Senate and the Supreme Court. The former is a legislative road block, with six-year terms and power centered disproportionately in southern and rural states. As I wrote recently, Jeff Merkley’s budding campaign to reform that structure is badly needed, and U.S. history is in many ways the history of Senate obstructionism.
The Supreme Court is even worse. With lifetime appointments, control of our judicial branch of federal government essentially comes down to the luck of the draw—which party will hold the executive branch when the most justices die? Which party can obstruct a new nominee from the Senate the most effectively? The answer to both questions, recently, has been “Republicans,” and the Federalist Society’s decades-long project to dominate the court has borne fruit. They have a hold that can’t be broken in the normal course of affairs, regardless of who controls the presidency or Congress, and at a time when climate change is threatening our existence and popular sentiment is swinging back to the left, that’s simply not acceptable.
So how do you break that hold? Easy—as with many things in this country, FDR showed the way. He threatened to “pack the court,” which is a phrase that means adding additional justices to swing the balance of power. If Republicans hold a 5-4 advantage, for instance, and three new liberal justices are added, suddenly they face a 5-7 disadvantage. Simple math, and it’s completely lawful—Article III of the Constitution gives Congress the power to set the size of SCOTUS whenever they want. It’s been at nine since 1869, and it’s high time for a proportional change anyway.
FDR never actually executed the court-packing scheme—the threat was good enough to see his New Deal reforms pass—but the time in American history has come when threats are no longer good enough. The strain of far-right conservativism embodied by men like Samuel Alito and Brett Kavanaugh and Clarence Thomas is not keen on compromise, and we’re about to feel the effects of their firm majority.
Which makes this Politico feature, in which elected Democrats actually consider the possibility of court-packing, so welcome as we approach the 2020 elections. To even hear this idea given real consideration by presidential hopefuls is a big deal:
Sens. Kamala Harris, Elizabeth Warren and Kirsten Gillibrand told POLITICO they would not rule out expanding the Supreme Court if elected president, showcasing a new level of interest in the Democratic field on an issue that has until recently remained on the fringes of debate.
The surprising openness from White House hopefuls along with other prominent Senate Democrats to making sweeping changes — from adding seats to the high court to imposing term limits on judges and more — comes as the party is eager to chip away at the GOP’s growing advantage in the courts.
“We are on the verge of a crisis of confidence in the Supreme Court,” said Harris (D-Calif.). “We have to take this challenge head on, and everything is on the table to do that.”
Harris put it perfectly—everybody knows the Supreme Court is a partisan body that is more interested in executing a conservative agenda than observing the kind of supra-political perspective that is supposed to be the judicial ideal. If they’re not going to play by the rules, why should anyone else?
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” said Warren, hitting the nail on the head.
Along with these candidates, several mainstream groups are now pushing for Supreme Court reform, including Demand Justice and Indivisible (the former run by Brian Fallon, a Hillary Clinton aide, the latter run by former Capitol Hill staffer Ezra Levin). Additionally, a handful of Democratic senators and congresspeople also have voiced their support.
Beto O’Rourke threw out the idea of a 15-member Supreme Court with five members chosen by each party and the last five chosen by the first 10 justices—a complicated and bizarre idea—while more conservative Democrats like Cory Booker and Amy Klobuchar have voiced caution.
In any case, after Mitch McConnell blocked Merrick Garland, and after Republicans pushed Kavanaugh through the nomination process, we don’t need any more proof that the Court itself is little more than a joke, and as far as some Democrats are concerned, all bets are off.