Democrats Need to Pack the Supreme Court the Next Chance they Get
Photo by Eric Thayer/Getty Politics Features Supreme Court
Welcome to the next 25 years (at minimum), folks. The Supreme Court is filled with a reactionary conservative majority who view themselves more as legislators working for the cause of Republican politics than impartial judges interpreting the law. The Supreme Court has done more this week to aid the Republican agenda than the Trump administration and Congress combined. First, they overruled a lower court’s unanimous decision asserting that this map was racially gerrymandered by the Texas Republican Party.
GOP gerrymandering in Texas likely cost Dems 5 House seats in 2016, more than any other state. The Supreme Court just reversed a ruling that found this map intentionally discriminated against Latinos, possibly costing them 3 seats https://t.co/N7ox0ilWgahttps://t.co/uq5MK5Mexcpic.twitter.com/ehTtAqi0kf
— Stephen Wolf (@PoliticsWolf) June 25, 2018
Sotomayor nails the practical implications of the Texas racial gerrymandering decision:
“The fundamental right to vote is too precious to be disregarded in this manner.” pic.twitter.com/nrK8sxA1pu
— Josh Douglas (@JoshuaADouglas) June 25, 2018
John Roberts, the Chief Justice of the Supreme Court famously struck down a crucial plank of the 1965 Voting Rights Act because he basically claimed that racism was over, and that section was not needed anymore (that decision is directly related to the existence of the map above). Today, the conservative majority on the court added two more undemocratic accomplishments to its resume. First, it upheld Trump’s travel ban that had been struck down by several appellate courts.
ACLU on the travel ban ruling: “This ruling will go down in history as one of the Supreme Court’s great failures.” pic.twitter.com/GXGYZiCxzz
— Matt Ford (@fordm) June 26, 2018
Defense lawyer Ken White summarized the conservatives’ majority opinion:
/8 But the upshot is this: the majority says that the President of the United states can revile Muslims and say he wants to ban them, but as long as his law is facially neutral and someone can make up a neutral argument for it, it survives. /end
— ThisIsNotNormalHat (@Popehat) June 26, 2018
The conservative majority on the Supreme Court also ruled that California cannot require any crisis pregnancy centers to tell women that they have options to terminate the pregnancy (on First Amendment grounds).
This is a sweeping decision. Justice Thomas’ opinion even strikes down disclosure requirements for unlicensed crisis pregnancy centers, reaching much further than many predicted. California may not require unlicensed CPCs to disclose their lack of a license.
— Mark Joseph Stern (@mjs_DC) June 26, 2018
In a concurring opinion, Justice Kennedy compares California to “relentless authoritarian regimes.” https://t.co/gheJI9NEc0pic.twitter.com/I0yFAOYiiE
— Mark Joseph Stern (@mjs_DC) June 26, 2018
Chief Justice Roberts, as well as Justices Samuel Alito and Neil Gorsuch, joined Kennedy’s opinion essentially calling California a fascist state. Frankly, there are echoes of Sessions’ and Trump’s attacks on California in Kennedy’s concurrence.
— Mark Joseph Stern (@mjs_DC) June 26, 2018
In the early 1930s, President Franklin Delano Roosevelt was trying to kick-start the American economy through his New Deal program (that would wind up being wildly successful). The conservative Supreme Court had struck down crucial provisions of the legislation, and in response, FDR used his political clout from his 1936 landslide reelection to introduce the Judicial Procedures Reform Bill of 1937. The central provision of the bill allowed the president to appoint an additional justice to the Supreme Court (maximum six), for every member of the Court over the age of 70 years and six months.
If you think this idea is unconstitutional, read the constitution. It says nothing about the size of the Supreme Court. The reason we have nine members on the court is thanks to the Judiciary Act of 1869. There’s no concrete reason why the makeup of the Supreme Court must remain static throughout history (Article III of the constitution simply states that Congress has the authority to fix the number of justices). Soon after FDR’s threat to “pack the courts” as it was called, Associate Justice Owen Roberts reversed his position, and became supportive of FDR’s New Deal. This decision is known as “the switch in time that saved nine,” and FDR’s legislation never made it out of committee, and the Supreme Court remained with nine members.
Simply the threat of using his constitutional powers was enough for FDR to shift the Supreme Court in his direction. The next liberal president must follow suit if we are to fight back against this reactionary strain of conservatism which is embedded within our judicial system—thanks to the efforts of George W. Bush and Donald Trump. Their decisions will come to define much of the law in this country going forward, and is that how we want our judicial branch to operate? Because of those two schmucks? Really?
Republicans destroyed any principled position they have on this topic the moment they defied the constitution and stole a Supreme Court seat from the Democrats (if a seat becomes vacant, Article II of the constitution mandates that the president must appoint a replacement). What they did is far more in violation of the spirit of the constitution than what I am proposing. Neil Gorsuch is an illegitimate justice and he should be viewed as such. His presence demands a proportional response, and a simple repurposing of the Judicial Procedures Reform Bill of 1937 should be on the next Democratic President’s agenda. Something must be done about the courts. Our “flawless” constitution allows presidents to enshrine their vision of the rule of law for decades thanks to the judges they appoint. Do you really think that Neil Gorsuch overruling liberal laws for decades to come is reflective of democracy?
It’s not. It’s time to fight fire with fire. The Republican Party has absolutely no respect for the rule of law, as evidenced by their activity at the state level. In 2011, Republican Governor Jan Brewer sent a letter to the chair of Arizona’s Independent Redistricting Commission accusing them of “gross misconduct” when drawing districts. The Republican state Senate then voted down partisan lines to remove the chair of the IRC. Arizona had gained one seat in the 2010 Census, and the IRC drew a map with four heavily GOP districts, two heavily Democrat, and three competitive ones. The state Supreme Court upheld the districts and reinstated the head of the IRC.
Defying yet another court order, Arizona Republicans then sued the IRC, claiming that the entity created via a citizen-initiated ballot measure was unconstitutional. The Republicans lost that case in the U.S. Supreme Court. But that’s not all, Republicans subsequently sued to have the map tossed as unconstitutional, and the Supreme Court unanimously ruled against them.
The Electoral Integrity Project has measured 213 elections in 153 countries and is generally regarded as one of the foremost authorities on evaluating free and fair elections. In 2016, they looked at GOP-controlled North Carolina, and found that it ranked next to Cuba, Indonesia and Sierra Leone in its lack of free and fair elections. Per Andrew Reynolds, who sits on the EIP’s advisory board:
Indeed, North Carolina does so poorly on the measures of legal framework and voter registration, that on those indicators we rank alongside Iran and Venezuela. When it comes to the integrity of the voting district boundaries no country has ever received as low a score as the 7/100 North Carolina received. North Carolina is not only the worst state in the USA for unfair districting but the worst entity in the world ever analyzed by the Electoral Integrity Project.
In Wisconsin, a judge ordered Republican Governor Scott Walker to stop delaying elections that he is legally mandated to call for. Republicans simply do not care one iota about the rule of law, and their actions prove it. A proposal to expand the Supreme Court under a liberal president would no doubt elicit shrieks of “tyranny!” but we are currently living under tyrannical rule. Americans are the frog in the pot of water, and it has finally reached a boil. It’s time to jump.
If we don’t do whatever we legally can to pack as many liberals into the court system as possible, then there may not be much of a democracy left to protect in a few decades. The biggest threat to the American project is the modern Republican Party, and while we can vote out their elected officials, it will take much more extreme measures to nullify their disproportionate Trumpian influence over the judiciary. It’s time that the Democrats grew a spine and finally fought for what they believe in.
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.