Mitch McConnell has achieved his lifelong political dream: packing the Federal Courts, and especially The Supreme Court, with right-wing extremists, who thanks to him, now hold lifetime appointments.
The result: Even if the Democrats manage to win the Presidency, the House, and the Senate simultaneously, a Supreme Court with a young 5-4 right-wing majority could undermine voting rights, environmental regulation , a woman’s right to choose, and many other areas for decades to come.
McConnell subscribes to the premise that “the easiest way to change the law is to change the judges.” As a result of refusal to consider Obama’s appointment of Merrick Garland to the Supreme Court, his subsequent success in installing young right-wing ideologues like Neil Gorsuch and Brett Kavanaugh to the highest court in the land, as well as his packing Federal District and Appeals Courts with other right-wing ideologues, McConnell may have insured that his dead hand will continue to govern the nation’s laws, long after he’s gone from the Senate and even the planet.
Expand the Size of the Supreme Court
Faced with this prospect, some Democrats have raised the possibility of a fix that would formerly be verboten to speak about in polite Washington company—If Democrats win all three branches of government, they could, by a simple Congressional majority vote, increase the number of Supreme Court Justices from nine to eleven and change the Court’s balance.
According to Daily Beast editor Sam Stein, no less a figure than former Attorney General Eric Holder told a group at Yale Law School that if Democrats win the Presidency and both Houses of Congress, they should consider adding additional seats to the Supreme Court. Holder’s spokesman Patrick Rodenbush elaborated:
“Attorney General Holder said that given the unfairness, unprecedented obstruction, and disregard of historical precedent by Mitch McConnell and Senate Republicans, when Democrats retake the majority they should consider expanding the Supreme Court to restore adherence to previously accepted norms for judicial nominations.”
Brian Fallon, a former top aide to Holder, Charles Schumer, and Hillary Clinton, who heads a new organization called Demand Justice, stated,
“We strongly believe that reforming the court — especially by expanding it — is the cornerstone for re-building American democracy. The Kavanaugh court is a partisan operation, and democracy simply cannot function when stolen courts operate as political shills.
Democrats cannot sit back and accept the status quo of a partisan five-seat majority for the next 30 years. We don’t consider those two seats that Trump has filled to be legitimate."
Ann Ravel, former Chair of the Federal Elections Commission added,
“I believe that the next Democratic administration should enlarge the Supreme Court, adding justices who will reverse the rigging of democracy. Today, the Court is controlled by justices chosen specifically because they’d listen to the rich and powerful. One of them sits in Justice Merrick Garland’s rightful seat. Two others have been credibly accused of sexual misconduct. Why should these be the judges who sit on high and decide our rights and the meaning of our Constitution? To truly change our broken political process, we need a Court that believes that all of us should have a voice.”
The prominence of the newly energized court expansion advocates may well force 2020 Democratic Presidential contenders to take a stand on the issue.
Congress Has a Consitutional Right To Add Justices
There will be predictable objections from Republicans and Washington elites (including some Democrats) that such a move is either unconstitutional, or is such a large break from traditional norms that it would be too divisive to be worth it.
The Constitutional argument may be quickly dismissed. QUITE SIMPLY, THERE IS NOTHING IN THE CONSTITUTION THAT SPECIFIES THE NUMBER OF SUPREME COURT JUDGES.CONGRESS HAS THE POWER TO SET THE NUMBER. Congress has changed the number repeatedly: In 1801 Congress set the number of Justices at 5, increased it to 7 in 1807, 9 in 1837, and 10 in 1863, and in 1866 (to prevent Pres. Andrew Johnson, who was in the process of being impeached, from naming any new Justices) moved it back to 7. Then in 1869, Congress set the number at 9, until, by refusing to even consider President Obama’s nomination of the moderate Merrick Garland to replace the center-right Anthony Kennedy, Mitch McConnell and Senate Republicans decided that 8 Justices were sufficient for the time being.
So objections by McConnell and Republicans that changing the number of Justices would be an out of bounds effort to break norms and politicize the Court are hypocritical, or worse.
McConnell has already broken the norms beyond recognition. In concert with the right-wing Federalist Society and Heritage Foundation, McConnell has devoted the past 30 years to packing the Federal Courts with increasingly reactionary ideologues. Among the right-wing decisions decided by a bare 5-4 conservative majority are the 2000 decision to stop the Florida recount and install George W. Bush as President, the decision to gut key sections of the Voting Rights Act, the refusal to put limits on partisan gerrymandering, and Citizens United. By a single vote majority, the Supreme Court has spent the past several decades undermining American democracy.
“In this moment, only one side is honoring norms meaning there aren’t really norms anymore,” according to Pack the Courts Executive Director Aaron Belkin. Adding Justices could “restore democracy to our democracy,” says Belkin
Some critics may refer back to FDR’s failed 1936-37 attempt to add Justices in response to the
Supreme Court overturning much of his New Deal legislation to combat the Great Depression. Roosevelt was accused of trying to “pack the court” and his plan was eventually defeated by a Democratic-controlled Congress.
But if FDR lost the battle to increase the Court’s size, he won the war to change the Court’s judicial philosophy to uphold the New Deal.
Three weeks after FDR first proposed increasing the Court size, Justice Owen Roberts switched sides to create a 5-4 generally pro-New Deal Supreme Court majority by upholding a minimum wage law that would previously have been found unconstitutional as infringing on the “right” to freely contract. Justice Robert’s reversal was famously called “the switch in time that saved the nine.” Ever since then, the Supreme Court has generally upheld the government’s right to regulate the economy.
Even a failed attempt by a Democratic President could have an impact in moderating future Supreme Court decisions, as it did in the Roosevelt era.
Chief Justice Roberts is hardly a “moderate,” as some assert, just because he provided the fifth vote to uphold The Affordable Care Act (while crippling it in key ways). He’s been solidly in the right wing camp on most issues, including Citizens United, voting rights, and gun-owner rights, among other controversial issues.
But Roberts does seem to be an institutionalist, with concerns about maintaining the Supreme Court’s legitimacy. Gorsuch and Kavanaugh are more aggressive conservative judicial activists than Roberts and may be more likely to see the Courts as a means of imposing their right-wing agenda, even against popular majorities.
It’s possible that--faced with a credible threat to change the Court size--Roberts would avoid providing the 5th right-wing vote on highly divisive issues like overturning Roe v. Wade, or finding environmental regulations enacted by Federal agencies unconstitutional. It might not quite be “a switch in time to save the nine” but it could put a crimp on the most reactionary potential Supreme Court decisions.
By holding that corporations are persons, unlimited contributions to PACS are protected by the First Amendment, encouraging voter suppression by overturning key sections of the Voting Rights Act, and failing to limit partisan gerrymandering, the one vote conservative Court majority Court has undermined democracy and put its thumb on the scale to help Republicans get elected.
Given the relative youth of the conservative Justices, the Supreme Court could undermine democracy, overturn the will of Congress and regulatory agencies to combat climate change, and infringe a woman’s right to choose for generations after Trump, McConnell, and many Republican Senators are dead and gone.
Threatening to, or actually, increasing the size of the court may be the only way to protect democracy. 2020 Democratic candidates may not be able to avoid this issue for long.