Rethinking America

Should the Democrats Pack the US Supreme Court?

Democrats should focus on passing laws if they win the White House and the Senate — rather than changing the size of the Supreme Court.

Credit: Stas Walenga Shutterstock.com

Takeaways


  • Despite their pious pronouncements, the conservative Justices appointed by Republican presidents are judicial activists.
  • Biden should not give the Republicans any ammunition on packing the Supreme Court or limit his options.
  • Democrats have grounds to fear that the Supreme Court, with a new 6-3 conservative majority, might invalidate the Affordable Care Act.
  • Democrats should focus on passing laws if they win the White House and the Senate -- rather than changing the size of the Supreme Court.
  • Democrats have a key advantage -- public opinion is on their side on many critical issues.
  • Republicans have fought so hard to control the judiciary because they know that their positions are not popular with voters.
  • If Biden wins the election and the Democrats gain a majority in the US Senate, they should use their political capital to pass critical legislation.

The Republicans have long stacked and packed the U.S. Supreme Court, as well as many appellate federal courts throughout the country.

In doing so, under the ever-cynical leadership of Mitch McConnell, the Majority Leader, they have violated long-standing traditions of the U.S. Senate as well as basic rules of fair play in government.

Time to get even?

Thus, the first 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 answer is no — and no, but with a twist (or potent delay option).

Democrats have every reason to be outraged. Some progressive Democrats have already clamored for expanding the Court.

And Senator Chuck Schumer, the Minority Leader, has warned that “all options are on the table,” after McConnell made it clear that he would ram through the nomination of Amy Coney Barrett just a few weeks before the election.

However, righteous anger, like hope, is a state of mind, not a strategy. Joe Biden should not give the Republicans any ammunition on packing the Supreme Court or limit his options.

Biden sidestepping

For the moment, Joe Biden has cleverly sidestepped the issue. The Democratic candidate said that he wants to convene a bipartisan commission to study possible reforms to the court system.

“It’s not about court packing,” Biden said, in an interview with CBS — scheduled to be aired on Sunday. “There’s a number of other things that our constitutional scholars have debated and I’ll look to see what recommendations that commission might make.”

Good reasons to be furious

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.

From “Advise and consent” to “Despise and reject”

In his time as minority leader, McConnell had 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 simply because a Democratic President had nominated them.

McConnell has followed a scorched-earth, obstructionist policy as he worked to reshape the federal judiciary.

Even in Barack Obama’s first term, when the Republicans were the minority in the U.S. Senate, the number of filibusters doubled, to over 80.

When the Republicans became the majority in the Senate, they became even more aggressive about blocking Obama’s nominees.

McConnell, master sophist

And McConnell has further infuriated the Democrats now by revising his own rule banning election-year appointments, so he can push through Amy Coney Barrett’s nomination.

Now, McConnell says, the rule does not apply because the same party (his, conveniently) controls the White House and the Senate.

That position is completely inconsistent with his previous rationale, which was that the people’s voice should be heard.

That is especially the case now, since the Republicans may lose control of both the White House and the Senate in about a week. McConnell just doesn’t like what the people may say.

The Supreme Court conservatives are radicals

Despite their pious pronouncements, the conservative Justices appointed by Republican presidents are judicial activists. They have issued several very dubious opinions, such as the Citizens United case or gutting the Voting Rights Act of 1965.

The arrival of Amy Coney Barrett, an extremely conservative judge, will probably exacerbate that trend.

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’ “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 Supreme Court.

The Democrats have a key advantage: Public opinion is on their side on many critical issues.

In contrast, the Republicans have fought so hard to control the judiciary because they know that their positions are not popular with voters.

Issues do matter to voters

For example, most Americans support the Affordable Care Act. In fact, they want it expanded. Most voters favor reasonable gun controls, as well as a more aggressive approach to saving the environment and higher taxes on wealthy Americans.

And although abortion is a deeply divisive issue, a majority of Americans favor at least some access to abortion services in the first trimester.

Voting rights and suppressing the popular will

That is why Republicans in many states, and now the White House, try so hard to suppress voting rights. In a fair electoral 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 U.S. 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

Conclusion

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

Yes, 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 indeed decide to block some of these laws, then the Democrats could reconsider the question of changing the size of the Supreme Court. They might even be able to campaign on that issue.

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About Ryan O'Connell

Ryan O’Connell spent his career on Wall Street as a lawyer, banker and bond analyst.

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