The GOP Already Packed the Courts
Will he or will he not? The Washington media establishment seeks a definitive answer from Democratic nominee Joe Biden on the issue of whether he will add justices to the Supreme Court, a strategy often derisively branded as “court-packing” for decades now. Given that President Donald Trump’s nominee to fill the vacancy left after the passing of liberal icon Ruth Bader Ginsburg, Judge Amy Coney Barrett, seems assured of receiving the requisite 51 votes to assume the duties of the position, progressives will be staring down the barrel of a 6-3 conservative Supreme Court majority that could endure for at least a decade.
Should they win back the presidency, the Senate, and expand their existing majority in the House of Representatives, progressives will have a lengthy wishlist of legislative priorities. A new Voting Rights Act, statehood for Washington, D.C., a Green New Deal, universal healthcare, criminal justice reform, massive economic stimulus that makes the New Deal look like a drop in the bucket. Whether Joe Biden and the Democratic establishment will actually listen to the public and put these items on the agenda or not is very much a question given their preference to make this election about decency or patriotism or something equally platitudinal. But should they decide to push for these policies and not make serious alterations to the size, powers, and composition of the Supreme Court, those policies and anything remotely resembling government action for the collective good will be DOA.
While the planet burns, the Supreme Court, as currently constituted, will strike down even the most modestly burdensome environmental regulations of the petroleum industry. While Republicans utilize every tool of voter suppression short of literacy tests and grandfather clauses, the Supreme Court will declare automatic voter registration a violation of the First Amendment. Even as the public turns increasingly away from the death penalty, the Supreme Court will expedite the executions of even innocent defendants and authorize increasingly inhumane methods of punishment.
And not just that. To give in to a 6-3 conservative court is to allow a decadeslong judicial veto and revision power over future and existing progressive legislation. Several justices have already made clear their desire to overturn Obergefell v. Hodges, the landmark ruling establishing marriage equality to be the law of the land. Roe v. Wade and the entirety of the Voting Rights Act may be next on the chopping block. In short, the future of a 6-3 conservative Court is akin to what George Orwell elucidated in1984: Brett Kavanaugh and Amy Coney Barrett’s boots stamping on a human face- forever.
How did we get here? For more than two centuries, senators interpreted the Constitution’s mandate to provide “advice and consent” on presidential nominees narrowly, naively pretending that a judiciary independent of politics could exist. Conservatives then nominated Robert Bork and Clarence Thomas, one whose ties to the Nixon Administration’s lawlessness and opposition to civil rights laws cost him votes on the floor even in his own caucus and the other a sexual predator, to the Court and proclaimed them to be martyrs for the cause of limited government. After this, the parties finally began to pay the judiciary the political due diligence it deserved, with Senate Majority Leader and Democrat Harry Reid invoking in 2013 what was known as the nuclear option to lower the vote threshold for sub-Supreme Court nominations to 51 votes in the Senate rather than 60 after Republicans refused to seat judges appointed by Barack Obama.
Then upon the death of conservative justice Antonin Scalia, current GOP Senate Majority Leader Mitch McConnell, not content with merely obliterating existing norms, created a new one: presidents may not appoint a Supreme Court justice during the final year of their terms. So he refused to even so much as hold a hearing on President Obama’s nominee, the compromise pick Merrick Garland. Then, once Trump won the 2016 election, he eliminated the filibuster for Supreme Court and executive branch nominees to push through the nomination of Neil Gorsuch. McConnell’s decision to push through the nomination of Judge Barrett in the midst of a pandemic, days before a presidential election has again put the stakes of the Supreme Court right in front of Democrats’ faces. Indeed, McConnell himself spelled it out quite well, saying recently "A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come."
It does not have to be like that, though. If Democrats win the presidential election and hold both houses of Congress and yet are still stymied by an intransigent Supreme Court majority chosen almost entirely by Republicans who lost the popular vote (and a Court that features as many alumni of George W. Bush’s legal team from the contested Florida recount as it does liberals) it will be of their own volition. It will be because they clung to norms Republicans were already taking a sledgehammer to and failed once again to grapple with the gravity of our present creeping authoritarian moment. It will be because they failed to heed the advice of Thurgood Marshall when he said that, “You do what you think is right and let the law catch up.”
To have even a passing chance of enacting a sliver of their agenda, Democrats have no choice but to add justices to the Supreme Court. Nowhere in the Constitution does it specify the number of justices that shall comprise the Supreme Court, leaving the question to be taken up by Congress. The figure has oscillated between the initial six justices prescribed by the 1789 Judiciary Act to five when John Adams had the law amended to limit the incoming Thomas Jefferson’s appointments to as many as ten during the Civil War before returning to nine ever since. Hell, as recently as 2016, after Scalia’s death, Republicans were claiming this same justification in clamoring to shrink the Court back to eight justices to prevent President Obama from nominating a justice that would have clinched a liberal majority. At least court-packing requires a political party to win both the White House and a Senate majority!
Yet the Republicans continue to whine incessantly about even the possibility of Democrats expanding the Supreme Court (and potentially the lower courts as well). Sen. Mike Lee, opponent of child labor laws and member of President Trump’s Supreme Court shortlist should another vacancy arise, said expansion would “do great political harm to our government.” Sen. Ted Cruz, perhaps the staunchest supporter of shrinking the Court when Republicans had the opportunity, argued expansion would constitute “abuse of power.” And Sen. Ben Sasse, a self-proclaimed institutionalist willing to bash the president only privately while voting in lockstep with him, calls the proposal “partisan suicide bombing.” They invoke President Franklin Roosevelt’s ultimately doomed effort to pack the court in 1937 while conveniently neglecting to mention that the mere threat of packing moved the Court to reject its longstanding holdings that the Commerce Clause was only to be interpreted so incredibly narrowly that the federal government would effectively be barred from regulating any industry. This led to them affirming basic workplace protections, the establishment of a minimum wage and Social Security, and the Wagner Act.
Their opposition, mind you, is not out of sincerely held convictions about the integrity of the Supreme Court. They were the ones who assailed what little integrity may have remained of it, the ones who changed the rules when they were in power. Republicans want to continue to assault the underpinnings of social democracy and basic democratic rights as their appointees to the Court have done in every successive Court to the Warren Court. As the president himself has made clear, with conservative ideas becoming less popular and America becoming more diverse, rather than adopting their ideas to win over new voters, the entire conservative political-electoral project rests on voter suppression aided by the Supreme Court. No, their issue is with an America evolving to reject their ideas and vote them out, an America they must suppress to whittle away what little remains of the New Deal and the successive progressive political project before they lose power for good.
Republicans do not disavow court-packing. They disavow the legitimacy of democratic (both small and large-d) rule. After all, they have been packing state courts for a long time now!
Five years after Republicans gained a trifecta in Arizona, they proposed HB 2537, a bill that would increase the size of the state supreme court from five seats to seven, despite assurances from the justices themselves that such an increase was not necessary or desired. Despite this, the bill passed the legislature and GOP governor Doug Ducey signed it into law, citing a desire to “[add] more voices.” Those voices added, it must be noted, turned out to be two white archconservative men. Former Maricopa County Attorney Bill Montgomery, a disciple of the disgraced bigot Joe Arpaio, a staunch opponent of criminal justice reform and LGBTQ rights now sits in one of those seats. The second is held by Clint Bolick, the founder of an extreme anti-government advocacy organization that has praised the Lochner era Supreme Court that declared minimum wage and child labor laws unconstitutional.
“The legislature changed the rules, right? That is bad for Democrats but elections have consequences, right?” the reader may ask. Well, historically, Arizona’s state supreme court justices have been picked by an appellate court commission selected by the governor and confirmed by the state senate, and required by the state constitution to reflect the diversity of the state. This has traditionally been taken to mean that governors must appoint members of both political parties to the commission. But when Montgomery failed to gain the approval of the commission when it criticized his lack of experience, Ducey replaced his opponents on the commission with Republican or Republican-aligned “independents” to ensure he would have the votes for Montgomery. Today, there are zero Democrats on the 15-member commission, making it effectively a rubber stamp.
In Florida, the state GOP has made no secret of its plans to rig the supreme court to their benefit. A recent Republican bill that would have split the state supreme court into separate civil and criminal courts of last resort passed the state House, although it failed in the Senate. Another Koch brothers-funded effort to remove liberal justices failed when voters rejected it in 2012. Former Gov. Rick Scott is maybe the most egregious example of GOP state-level court-packing aside from Ducey. In 2016, Scott announced that he would add three more justices to the court the morning his term expired in 2018, as three of the court’s seven justices were facing mandatory retirement due to age limits when their terms expired. Like Ducey, he also stacked his state’s equivalent nomination commission with conservative reactionaries. There was one major problem with this: according to Florida law, Scott would not have actually been governor that day. While it was tradition that incoming governors were sworn in at noon of Inauguration Day, the state’s constitution actually merely states that their term begins on the calendar day- that is, midnight. Had Democrats won the election for his successor, they would have insisted on being sworn in at midnight to prevent him from appointing three new justices and shaping the court for a generation before noon of Inauguration Day. Scott’s move was ultimately blocked by the courts.
This was all made possible by former Governor Jeb Bush, who changed the process by which nominees are appointed. Until 2001, the nine-member nominating commission was composed of three members selected by the Florida Bar, three selected by the governor, and three more justices selected by a consensus of the other six justices. Bush and the Florida GOP changed this to allow the governor to appoint all of the members of the commission. These appointees have delivered the state supreme court to the GOP for decades to come, as they loaded the court with conservative lobbyists, their donors, and their allies.
Just to the north, the Georgia GOP has proven to be just as brazen. Democrats controlled the state supreme court until 2016 by a 4-3 margin. Governor Nathan Deal, a Republican, and his allies in the legislature enacted a bill that spring to increase the number of justices to nine and give Republicans a majority. Deal’s successor, Gov. Brian Kemp then cancelled an election scheduled for earlier this year to replace a retiring justice, asserting that he had the authority to appoint a replacement justice who would serve for two years (keeping the GOP in the majority). The (GOP-stacked) state supreme court agreed and authorized the decision by Kemp and the Secretary of State to cancel the election.
Similarly bold actions have been attempted by GOP governments in other states and for sub-state supreme court bodies. Republicans reduced the number of judges on the Oklahoma Workers Compensation Court from ten to seven judges in response to a movement by labor groups to support more state support. North Carolina Republicans tried to shrink the size of the state’s appeals court from 15 to 12 when a new Democratic governor stood to appoint three new judges to replace retiring ones. This was ultimately vetoed by that governor, Roy Cooper.
Iowa Republicans sought to increase the size of their state supreme court after the court affirmed marriage equality by striking down a state law limiting marriage to opposite-sex couples. They ultimately failed because their bill died in the Democratic-controlled legislature. Montana’s GOP legislators tried unsuccessfully to remove two seats of their supreme court that were held by liberals in 2011, but the bill died in committee assured of a veto by the Democratic governor. Oklahoma’s GOP, following their successful stunt with the workers compensation commission, unsuccessfully tried to reduce the number of justices on their supreme court after the liberal court issued a series of pro-choice rulings. These are just a few of the GOP’s effort’s to pack or otherwise amend state supreme courts (which hear many more cases than federal courts including on such important issues as voting rights, partisan gerrymandering, and capital punishment) to benefit them politically.
Court packing, rather than the extreme historically outlier it is often presented to be and is even assumed to be by the Democratic establishment, is a long-term, largely successful campaign that has been weaponized by one side of the aisle to stymie progressive legislation at every turn. Republicans are reaping the benefits of this strategy electorally even as Democrats are repeatedly asked to show restraint and maintain the “legitimacy” of the Supreme Court.
Damn the norms.
The status quo is as untenable as it is undemocratic.
It has to go.
When one party has won the popular vote in six of the past seven presidential elections and yet has only been able to appoint four of the last 19 Supreme Court justices, there is a crisis of democratic legitimacy.
Pack the courts.
Pack them up the wazzoo.
Pack them to the moon and back.
You qualify for federal student aid? You have visited a Smithsonian museum in the past four years? Congratulations, you are on the Supreme Court within the first 100 days of a Biden Administration if Democrats find their collective spine. See, as ridiculous as those suggestions may sound, look me in the eyes and tell me that they are that much more absurd than the status quo of permanent minority rule by these Koch-funded, Federalist Society-bred judges that Mitch McConnell is shepherding through the confirmation process so they can decimate what remains of the New Deal. Blink and you might miss democracy itself fly by.
In his 1959 novel The Sirens of Titan, Kurt Vonnegut wrote, “There is no reason why good cannot triumph over evil, if only angels get organized along the lines of the mafia.” Democratic leaders may wax nostalgic of the “good old days” of the Warren Court, about how they did not want it to come to this. But Mitch McConnell and state Republicans have bulldozed all of the norms, leaving in their trail nothing but an array of far-right Supreme Court and lower-court judges who would strike down any remotely ambitious piece of legislation progressives could seek to pass. Democrats have to organize and fight back, or risk becoming entirely irrelevant.
A.J. Manuzzi is a fourth-year undergraduate double-majoring in Political Science and International Relations. He is an editor for domestic affairs at the Agora.
Image courtesy Phil Roeder via Creative Commons