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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Democrats Consider Options on High Court Expansion

In “There Is Only One Solution to the Amy Coney Barrett Debacle: Yes, Democrats must expand the courts. Here’s why, and here’s how,” Elie Mystal writes at The Nation:

…There’s not a single Democratic law or program that a court controlled 6-3 by conservative justices cannot frustrate or block. A Republican-appointed court will smack down voting rights legislation, gun reformlegislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All. Republicans wanted the court as a hedge against their waning popular support, and now they have it.

The obvious—and only—solution to this Republican power grab is for Democrats to expand the number of justices on the Supreme Court.

…We cannot go on like this. We cannot continue to exist in a polity in which the death of an octogenarian begets a generation-defining game of tug-of-war. We cannot endure under a legal system in which the death of one or two people opens the door to wild changes in our laws or the devastation of the rights of people living under them.

Mystal envisions a dramatic expansion of the Supreme Court far beyond what most Democrats are currently pondering, if they win the presidency and a Senate majority:

The way to free ourselves from the random wheel of death is to have more justices on the court. Ginsburg’s passing would have had significantly less impact on the fate of women’s rights if she had been but one of 19 people instead of nine. By the same logic, it wouldn’t have made sense for Republicans to block Garland’s appointment if it would have changed just one seat on a court of, say, 29 individuals. Every Supreme Court justice would still be important but not nearly as important as each one is now.

It would be a tough sell, even with Democrats. But reducing the power of individual justices by increasing the size of the court makes sense, as Mystal explains:

Moreover, a much larger court would likely lead to more moderate opinions (if not more moderate judges, since those don’t really exist). That’s because Supreme Court opinions have to be agreed to by a majority of the court…Trying to get a majority of your colleagues to agree with you on a 29-person court is just a different beast from trying to get your four archconservative buddies to sign on to your ruling. Decisions made for the benefit of more people tend to be watered down. That’s basically how Olive Garden stays in business.

Mystal envisions including some Republicans in the larger court expansion, to get some “buy-in” from Republican senators. Mystal’s large expansion proposal may make more sense as a longer-term strategy — it would require a major effort to educate the public, since many people seem to believe that expanding the court is a radical idea, despite historical facts to the contrary. However, if Dems win both the white house and a senate majority, they will have to move quickly to reduce the damage a 6-3 Republican court would do their policies. They could start with a smaller  expansion, from 9 to 13, and then use their leverage to create a larger court with Republican representation and buy-in.

Former congressman and MSNBC commentator Joe Scarborough has a Washington Post column, “There’s nothing more originalist than packing the court,” which clarifies the history of Supreme Court expansion in light of Judge Barrett’s likely confirmation. As Scarborough notes,

As Amy Coney Barrett said in Senate testimony this week, the Constitution has “the meaning that it had at the time people ratified it.” Even before every state ratified America’s founding charter, George Washington signed a bill that placed just six justices on the Supreme Court. The second president, John Adams, reduced that number to five. Thomas Jefferson increased that number to seven. And the man who inspired the term “Jacksonian Democracy” added two more justices in 1837.

…Abraham Lincoln confirmed his opponents’ worst suspicions when he moved against the Supreme Court by signing the Judiciary Act of 1862, adding a 10th justice to the court. Following his assassination, Republicans in Congress reduced that number to seven in an effort to thwart Lincoln’s Democratic successor. Republicans then added two justices after winning back the White House in 1869.

…Given such a powerful legacy, originalists, Republican politicians and right-wing bloggers would never dare suggest that adjusting the Supreme Court’s size was anything other than constitutional and consistent with the republic’s oldest traditions. To do so would condemn as un-American the Father of our Country, the author of the Declaration of Independence and the first president to live in the White House.

At The American Prospect, Robert Kuttner urges Democratic presidential nominee Joe Biden to get out front on Supreme Court expansion:

Joe Biden has been getting pummeled by Republicans, both for the demands of many Democrats to expand the Supreme Court, and for ducking the question of whether he supports the idea. He can blunt these attacks by facing the issue head-on.

Expanding the Court is a legitimate idea because Republicans have been engaging in court-packing for decades. For starters, they have imposed extreme ideological litmus tests on their own court appointees, and shamelessly delayed or blocked Democratic appointments.

…Today’s Republicans have so politicized the Court that its very legitimacy is in question. Biden needs to say that he has not ruled out expanding the Court, and that he will begin a process of consultation with scholars and jurists to consider several alternatives, including fixed terms for justices, mandatory retirement ages, and a larger Court.

The political reality is that Biden does not yet have a consensus on how to proceed even among Democrats. With the likelihood of a closely divided Senate, he will need to build support for whatever reform project can command backing both among scholars and the citizenry and in Congress.

Kuttner concludes, “It’s time for Biden to make a virtue of necessity, and address the issue of court expansion in a principled and candid fashion. Candor is in rare supply these days. Voters appreciate it in a political leader when they see it.”

One comment on “Democrats Consider Options on High Court Expansion

  1. Victor on

    It is important for Democrats to present any Supreme Court expansion as part of a package of ideas to fix the accountability problems with the federal judiciary, including the role of prosecutors, the Department of Justice and the Federal Bureau of Investigation.

    Voting on the Scotus expansion should proceed immediately though. The Obama era Democrats made the mistake of getting bogged down with legislative detail. Delay rather than haste was the problem from 2009-10.

    As a form of balancing the use of a simple legislative majority to expand the Court, Democrats could propose a constitutional amendment to require that all future changes to the laws affecting the judiciary (again, including prosecutors and FBI) require a two thirds majority. The 2/3 requirement should apply to changes to the jurisdiction and competence of courts as well.

    If it is decided to seek flexibility on the issue of terms, then the amendment would also have to get rid of the requirement for lifetime appointment. As regards the Supreme Court at the very least there could be a requirement that nominees should not be younger than a certain age and that they should be retired at another certain age.

    Either the future law adopted by 2/3 majority or the constitutional amendment could deal with issues such as whether majority, 3/5 or 2/3 would be required to appoint judges and prosecutors (and the FBI Director) and what their terms should be (including the question of whether to get rid of lifetime appointment for judges).

    District judges and district prosecutors should probably be appointed by 2/3 and their number should also be fixed by some sort of consensus.

    The number and terms of Circuit court judges (and maybe even the number of Circuits) should also be dealt with.

    Democrats will always be at a disadvantage when it comes to the judiciary because of the anti-majoritarian nature of the Electoral College and the Senate.

    Until these two bodies are changed, Democrats need to figure out whether they will be constantly changing compositions of the Supreme Court that are the result of structural anti-majoritarianism or whether to embrace the principle that decisions regarding the judiciary should be subject to a certain degree of political consensus.

    It is not possible to control when Scotus justices will retire or die which can again give Republicans the advantage in nominations. An amendment to require the replacement of judges who die by nominees of the same ideology would be hard to draft and politically less palatable.

    The idea of having Scotus or other judges or prosecutors nominated or vetted by some other political, judicial or hybrid body is interesting but would be unprecedented. Even though it would be in line with what most other Western liberal democracies have done it would require a lot more discussion and should only proceed with a degree of bipartisan consensus.

    Strengthening ethics, transparency and conflicts of interests rules is low hanging fruit that should be prioritized.


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