//  10/15/18  //  In-Depth Analysis

Michael Klarman is the Kirkland & Ellis Professor at Harvard Law School

Despite Democrats’ having won the popular vote in six of the last seven presidential elections, the Supreme Court has not had a liberal majority since 1969. Because Senate Majority Leader Mitch McConnell straight-out stole the seat vacated by the death of Justice Antonin Scalia early in 2016, a seat that should have been filled by President Barack Obama’s nominee (Merrick Garland), liberals are unlikely to control the Court for at least another couple of decades. As has been frequently noted, recently appointed Justices Neil Gorsuch and Brett Kavanaugh were nominated to the Court by a president who lost the popular vote by nearly three million votes, and were then confirmed by a majority of senators who represented minorities of the American population. 

Even before the appointment of Justice Kavanaugh, the Supreme Court—which has always been a political institution—had become an adjunct of the Republican Party. Today’s conservative majority on the Court busts labor unions (which remain the backbone of the Democratic Party) and undermines class-action litigation (which the Republican justices apparently regard as a gravy train for plaintiffs’ lawyers, who contribute disproportionately to Democratic coffers). That same majority legitimizes voter suppression (which purports to be addressed toward a form of voter fraud that exists only in the fevered imagination of Fox News viewers), with the effect of diminishing turnout among constituencies that disproportionately support the Democratic Party—racial minorities, poor people, and young adults. Conservative justices have refused to intervene against political gerrymandering, which in recent years has vastly inflated Republican power at the state and national levels. These same Justices have also used dubious interpretations of the First Amendment in campaign-finance rulings to unleash money in politics. Of course, that largely redounds to the benefit of the Republican Party, which derives a disproportionate share of its resources from wealthy donors who generally regard the political arena as a forum in which to purchase policies that benefit them, such as tax cuts that disproportionately favor the rich and the evisceration of the Environmental Protection Agency. The Court’s Republican majority ferrets out non-existent animus against conservative Christians in a Colorado civil rights commission, while turning a blind eye to transparent animus against Muslims within the Trump administration. And, lest we forget, Republican justices in 2000 shut down a recount that jeopardized the prospects of their party’s presidential candidate, eventually enabling President George W. Bush to put two more Republican Justices on the Court.

When progressives win back political power at the national level, which will happen one day, we will be confronted with the most conservative Supreme Court in nearly a century. It is easy to imagine that Court concocting constitutional arguments against virtually every measure a progressive administration might pursue—for example, universal health care, a ban on assault weapons, a new federal law to protect voting rights, or environmental rules to mitigate the effects of human-caused global climate change. (Remember, this is the same Court that came within an inch of invalidating the most important piece of domestic legislation in the last fifty years, the Affordable Care Act, on a constitutional basis so absurd that it didn’t even occur to nearly any of the Republican politicians who had opposed the bill’s passage in Congress.)

What might be done to remedy the Republican Party’s hijacking of the Court? One, forward-looking solution—first proposed by a couple of very clever University of Virginia Law students in that institution’s law review over a decade ago—is neat, simple, and ought to command bipartisan support. The Constitution should be amended to provide that Supreme Court Justices serve nonrenewable eighteen-year terms in office, which are staggered so that one Justice retires every two years. This proposal has the advantages of ending strategic retirements (which allow departing Justices to determine the party of the president replacing them), deterring strategic appointments (that is, nominating relatively young candidates in order to extend the length of their service), and eliminating the randomness characterizing the present system (e.g., President Taft got six appointments during a single term, while Jimmy Carter got none). Because this reform probably requires a constitutional amendment, we should not hold our breaths waiting for it to happen.

The other solution—expanding the size of the Court once Democrats regain control of Congress and the presidency—will inevitably appear partisan (though, rightly understood, it is not). Altering the size of the Court has been done many times in American history (though not since 1870) and is clearly constitutional (which doesn’t mean that the current Court would uphold it). Adding one justice would be an obvious and eminently equitable solution to Mitch McConnell’s theft of the seat President Obama nominated Merrick Garland to fill. But Democrats should not stop there. A president who lost the popular election by 2.9 million votes—and whose victory was rendered possible only by an FBI director’s misguided intervention, Russian meddling in the election (which, at a minimum, the victorious candidate’s campaign team attempted to involve itself with), and the candidate’s own personal involvement in a felonious scheme to pay hush money to an adult film actress days before the election to cover up an extramarital affair–ought not to be making Supreme Court appointments that will continue to affect the country for the next thirty-plus years. Democrats must seize the earliest opportunity to offset those appointments with some of their own.

Of course, Republicans will scream bloody murder at the mere mention of “court-packing,” accusing Democrats of an unprecedented assault on our democratic institutions and traditions. Given Republican behavior of recent decades, such protests would be risible. To explain why, let me offer an abbreviated survey of fairly recent Republican norm breaking—first at the national level, then at the state level.  Political scientists and constitutional lawyers call such actions “constitutional hardball”—the violation of the unwritten norms and traditions that make democracy possible: 

  • Republicans impeached and sought to remove from office a president for lying under oath about sex, despite his having 60-65 percent approval ratings during the entirety of that episode. 
  • For the first time in American history, Republicans in Congress threatened to default on the national debt—calling into doubt the good faith and credit of the United States government—in an effort to extract concessions from President Obama over federal government spending. (You remember: back when Republicans used to pretend to care about deficits, before blowing them up with last year’s 1.5 trillion dollar tax giveaway to corporations and the wealthy). 
  • On multiple occasions, congressional Republicans shut down the federal government as leverage to force concessions on government spending and to secure repeal of a duly enacted statute, the Affordable Care Act. 
  • Over the better part of a decade, Senate Republicans used the filibuster nearly as many times as it had been used in the entire history of the United States government in an effort to block President Obama’s appointments to the federal judiciary and to federal government agencies (in some cases, essentially shutting down the operation of those agencies). 
  • Finally, at the risk of repeating myself, Republicans stole a Supreme Court seat—something never before attempted or accomplished in U.S. history.

Recent developments at the state level reveal an even more alarming trend: Republicans have repeatedly abrogated a basic principle of democracy—when you lose in politics, sometimes you have to just admit defeat, walk away, and return at a later date to resume the fight. 

  • In Wisconsin this year, Governor Scott Walker stopped holding special elections because his party was losing them—until a state court ordered him to resume holding them (which prompted talk among Republican state legislators of impeaching the judge for that order). 
  • In Pennsylvania this year, Republican state legislators have talked of impeaching the state supreme court justices who invalidated under the state constitution the legislature’s obscene gerrymander of congressional districts. (Republicans controlled thirteen of eighteen congressional districts in Pennsylvania while winning just under half of the popular vote in that state’s 2012 congressional elections.)   
  • In North Carolina, when a Democrat in 2016 won the governorship, Republican state legislators responded by eviscerating the powers of the governor. 
    • In this fall’s election, North Carolina Republicans have put on the ballot a referendum measure to transfer appointment of state supreme court justices from the governor to a commission picked by the legislature, while simultaneously announcing plans to expand the size of the court from seven to nine, which would upend the court’s current Democratic majority. 
  • Similarly, in Florida, outgoing governor Rick Scott has openly declared his intention, on his last day in office, to replace three Democratic justices on the state supreme court, who are facing mandatory retirement, with Republicans. 
  • Last year in Alabama, Republican governor Kay Ivey was pressured by state and national Republicans to postpone the special election for the U.S. Senate that they feared (rightly, as it turned out) they would lose once Roy Moore emerged as the Republican nominee.
  • As voters go to the polls in 2018, tens of thousands of African Americans in Georgia may not be allowed to cast a ballot because the secretary of state, who also happens to be the Republican Party’s gubernatorial nominee, is refusing to process their voter registration forms under a state law aimed at suppressing political participation by predominantly Democratic constituencies by requiring “exact matches” between those forms and voter identification cards. 
  • In New Hampshire, many out-of-state college students will find it prohibitively expensive to vote under a new law that Republicans passed on the assumption that liberal Dartmouth students cost Kelly Ayotte her U.S. senate seat in the closely fought 2016 contest.
  • In North Dakota, thousands of Native Americans will be disfranchised by yet another voter ID law targeting them after they were perceived to have provided the slim margin of victory for Democrat Heidi Heitkamp in her 2012 Senate race. (This law requires that voter IDs include street addresses, which inhabitants of Native American reservations frequently do not have.)  

The developments just described illustrate a sort of sickness that now pervades the Republican Party: Democracy doesn’t matter; the rules of the game don’t matter; only holding and accumulating power matters. Democrats have not behaved that way, and, in general, they shouldn’t. Rather, Democrats should work to entrench democracy by expanding the suffrage, removing obstacles to voter registration, ending partisan gerrymandering, reducing the influence of money in politics, and supporting statehood for Puerto Rico and the District of Columbia.

But Democrats cannot undo Trump’s illegitimate appointments to the Supreme Court in the same way that they can repeal voter ID laws or undo Republican political gerrymandering. Supreme Court appointments carry lifetime tenure, and the only constitutional way to offset them is by creating new Court vacancies to be filled by Democrats. Moreover, just about every democracy-entrenching device that Democrats might enact—new voting rights legislation at the federal level, campaign finance laws, state independent districting commissions—is a plausible candidate for invalidation by a Republican majority on the Supreme Court.

Figuring out how to behave in a world where one party no longer adheres to the basic norms of democracy is extremely challenging. Essentially, Democrats face a choice between responding to norm violations in kind, which risks furthering a vicious cycle to the bottom that eventually will destroy democracy, or adhering to the norms while Republicans systematically violate them—a sort of unilateral disarmament that rarely works out well for the disarming party. 

However, on this occasion, there is an obvious response to the concern that if Democrats pack the Court, Republicans will just pack in further in their favor at the next opportunity: Republicans are already packing the courts. As already noted, Senator McConnell stole the seat that should have gone to Merrick Garland. Over the last two years of the Obama presidency, Senator McConnell blocked every presidential nominee to the federal appellate courts but one; in the first two years of Trump’s presidency, McConnell has secured the confirmation of nearly thirty federal appellate judges. As noted, Republicans in North Carolina and Florida are openly announcing plans to pack those states’ supreme courts after the 2018 elections. In that political context, for Democrats not to respond in kind is to commit political suicide.


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