TRYING TIMES

How the Democrats Could Thwart Trump’s Supreme Court Takeover

When it comes to filling vacancies on the Supreme Court and lower courts, the Democrats have played nice for far too long.

If you’re a Democratic partisan, the name Merrick Garland probably still makes your blood boil. And it should. As the Supreme Court prepares to issue verdict after verdict that will further entrench conservative power in the United States, the far-reaching effects of Mitch McConnell’s darkly clever Garland hold-up will only become more shocking and problematic. The most galling fact is this: in any sane political system, conservatives would be in the minority, both on the Supreme Court and in the rest of the federal judiciary. And the next time they are in power, Democrats must rectify this injustice by adding seats to the Supreme Court and radically enlarging the federal judiciary, filling those slots with the most outrageous liberals they can find.

Why? The Democratic candidate has won a popular vote majority in six of the last seven presidential elections. Over that same time period, Democrats have secured 30 million more votes for the U.S. Senate than their Republican counterparts. In 2016 alone, Hillary Clinton won the popular vote by nearly 3 million votes, and Democratic candidates received 11 million more votes for the Senate. The record here is clear: Over the past 26 years, the American people have voted, over and over again, to give Democrats the authority to staff the federal judiciary with living constitutionalists, and instead what they have received is a Supreme Court that remains in the death grip of a radical, conservative majority and lower courts that have flipped back and forth between Democratic and Republican appointees. Here, as in so many other ways, American democracy has misfired by hewing to institutions and procedures cooked up over candlelight a hundred years before the invention of the internal combustion engine.

These results on their own are a problem, as they represent a significant disjuncture between the wishes and desires of the American people as a whole and the results of U.S. elections. But Republican elites have compounded the problem by escalating the existing tit-for-tat court wars to unheard of new extremes. By some estimates, Republicans blocked as many appointments to the federal judiciary between 2009 and 2013 as had ever been held up in the long history of the United States. Faced with this brazen violation of the Constitution’s spirit, Democrats took the sensible step of eliminating the judicial filibuster in 2013 so that President Obama could fill routine openings on the federal courts with simple majority votes in the Senate. And then in 2016, Republicans responded by obliterating all modern precedent by refusing to even debate the nomination of Garland, President Obama’s pick to fill the seat of the late originalist Antonin Scalia.

Many Democratic elites will be reluctant to pursue a court enlargement scheme, for good reason. Court packing is a classic authoritarian maneuver used by aspiring dictators who seek to consolidate their power by dismantling democratic institutions. Most recently, Hungarian Prime Minister Victor Orban forced judges into retirement, stripped the Constitutional Court of its jurisdiction over certain matters, and packed the court with appointees from the ruling Fidesz Party. Orban was not trying to rectify electoral injustice, but rather to aggrandize power for himself and his allies. In political science, this process is known as “democratic backsliding.” With far-right parties on the rise in Europe, and with Republicans in Washington bent on eroding norms and constitutional restrictions on their power, there is newfound popular interest in how democracies fall apart. Earlier this year, the august, non-partisan Freedom House lowered America's score on its benchmark index of democracy, yet more evidence that U.S. democracy is in peril. Would enlarging the courts contribute to the unraveling of the republic?

Not necessarily. Just because a maneuver is reminiscent of authoritarianism does not mean that it should be automatically out of bounds under all circumstances. And the reality is that it is Republicans who have been treating the federal judiciary like aspiring Orbans and Erdogans for the better part of two decades. Ask yourself a question: what is the functional difference between stealing the swing seat on the Supreme Court and adding justices? Both have the same result: flipping the majority from appointees of one party to another. What Republicans did in 2016 was every bit as transgressive and cut-throat as anything attempted by elected authoritarians seeking to take apart the architecture of democracy piece by piece. This act of thievery will soon result in a major blow to organized labor, depriving workers of critical rights and the Democratic coalition of a key institutional force for election turnout. Yet everyone in the Republican Party went blithely along with this act of sabotage, because they gambled that they would get away with it, and they were proven correct.

If that weren’t bad enough, there is a movement afoot on the judicial far-right to do exactly what I’m proposing here and much, much worse. Last year Steven Calibrisi of Northwestern University’s Pritzker School of Law, a leading figure in the originalist movement, co-authored a paper with Shams Hirji recommending a sweeping expansion of the district and appellate courts as part of a project of, as they unashamedly noted, “undoing Barack Obama’s judicial legacy.” Luckily for Democrats, there are still enough traditionalists in the Senate Republican caucus that this idea is currently a non-starter. But let’s be honest: those stalwart institutionalists are dying (John McCain) or fleeing into retirement from the galloping menace of the Trumpian takeover of the party (Jeff Flake and Bob Corker). It won’t be long before Senate Republicans will have the votes to do something like what Ted Cruz threatened in 2016, which was to leave seats open on the Supreme Court had Hillary Clinton won the presidency and Republicans maintained control of the Senate. This threat was made casually and unapologetically in public and echoed by McCain himself. And again: what is the difference between court-shrinking and court-packing?

There is no difference. The escalation is already upon us. The judicial archduke has been assassinated. And Democrats must decide whether they want to be the victims of Orbanism, or whether, instead, they want to use their power to create a fairer and more just political system that translates the will of the American people into policy.

Other figures on the judicial right want to borrow further ideas out of the Orban playbook by either shrinking the size of the court, as law professor University of St. Thomas law professor Michael Stokes Paulsen argued in an election eve article in 2016 for National Review, or stripping the Supreme Court of its jurisdiction over, for example, abortion. Still others want to do away with judicial review—the ability of the Supreme Court to determine that laws violate the Constitution and to invalidate them—altogether. Here again we run up against the Constitution’s lack of clarity and precision about the purpose of the federal judiciary. The Supreme Court’s power to toss out laws duly passed by Congress and signed by the president is nowhere to be found in the constitutional framework. The authors of the Constitution were famously divided about the powers that should be possessed by the courts, and those disagreements were settled not by the Constitution but by precedent, over time. As Notre Dame’s Julian Velasco argued in 1997, Congress therefore almost certainly has the legal right to curtail the Supreme Court’s power to rule in whatever areas of law they see fit.

To avoid the perception that they want to destroy American democracy, Democrats should do more than just pack the courts. First, they should offer their counterparts across the aisle an opportunity for compromise by amending the Constitution and eliminating these destructive, partisan court battles forever. Our founding document contributes several critical problems to the court wars. First, it does not spell out the Senate’s “advice and consent” obligations, allowing Republicans to claim, correctly, that they were not strictly legally obligated to consider the Garland nomination in 2016. Second, the Constitution made the grave error of conferring lifetime tenure to all members of the federal judiciary. This makes every opening on the courts, and particularly the high court, an incredibly high-stakes battle that allows the president to exert far-reaching power over the future of American public policy long after he or she has left the stage.

Democrats, as one of their first orders of business if they recapture total power in Washington in 2020, should therefore introduce a Constitutional Amendment that does three important things. First, it should regularize Supreme Court appointments, modeled after a proposal by the DC-based organization Fix the Court, by granting every president the right to appoint two justices to the Supreme Court for every four-year term. Tenure on the Supreme Court would be capped at 18 years. To avoid a repeat of the Merrick Garland fiasco, this amendment should also spell out much more clearly the Senate’s obligations to consider these appointments quickly and could also place a limit on the number of such candidates the Senate may reject before the president can fill the seat unilaterally. The amendment could also fix the number of SCOTUS justices and create a formula for increasing the size of the lower courts to keep up with growth in caseload and population, stipulating bipartisan procedures for filling those seats. Finally, such an amendment could finally write the power of judicial review into our political order by clearly spelling out the Supreme Court’s right to set aside laws as unconstitutional.

Such an amendment would be nothing short of magical. While winning the presidency would obviously still be very important for short-term control of the court, no longer would our politics be held hostage to these ugly court battles. Partisans could see losing a presidential election not as a mortal blow to their hopes of ever controlling the courts, but rather as a temporary setback that can remedied four years later. Perhaps many pro-life Republicans wouldn’t have held their noses to vote for Donald Trump as a proxy for a Supreme Court seat but could instead have cast a ballot for Hillary Clinton for the good of the country. Lowering the partisan temperature around court appointments would be transformative. Most importantly, more precisely spelling out the size and power of the courts, the timing of appointments and the obligations and prerogatives of the Senate and the president will bring to a close this dangerous period in American history where runaway hyper-partisanship serves as an invitation to manipulate the courts to lock in a party’s long-term power.

Will Republicans agree to go along with this plan? Probably not. But they should be given the opportunity, in the spirit of compromise and small-d democracy. If they refuse, Democrats can say, with total justification, that they tried to remedy the Merrick Garland heist in a fair, transparent, and bipartisan manner, and that they now have no choice but to add seats to the Supreme Court and engage in the one-sided staffing of an enlarged federal judiciary. Those who might reply that this will invite further, democracy-rupturing retaliation remind me of the scene in Monty Python’s Life of Brian, when a man about to be stoned to death continues to speak heretically and is told “you’re only making it worse for yourself” by the people about to kill him. “Making it worse?” he asks. “How could it be any worse?” Democrats can either strike first or resign themselves to once again to being the targets of a one-sided escalation that will entrench reactionary conservative power for another generation.

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