To save our democracy, we must expand the Supreme Court

Critics say such a move might cause a "death spiral" of democracy. Well, guess what? That's already here

Published April 26, 2020 12:00PM (EDT)

Photo illustration of Supreme Court Justices, plus 4 silhouetted justices (Getty Images/Chip Somodevilla/Salon)
Photo illustration of Supreme Court Justices, plus 4 silhouetted justices (Getty Images/Chip Somodevilla/Salon)

Earlier this month, the U.S. Supreme Court interfered in an election in Wisconsin in yet another 5-4 decision meant to secure an electoral advantage for the Republican Party. Amidst the coronavirus pandemic, a federal district court had granted a one-week extension to Wisconsin's mail-in ballot deadline. The election included not only Wisconsin's presidential primary, but also a crucial judicial general election that threatened the GOP's hold on the state's highest court. But the Supreme Court overruled the lower court, tossing out thousands of absentee ballots and forcing Wisconsin voters and poll workers to risk exposure to coronavirus. The irony: the justices made their votes in the case remotely. 

The Court reasoned that lower federal courts "should not ordinarily alter the election rules on the eve of an election." This ignored, of course, that a pandemic made the election in question anything but ordinary. Milwaukee, a city of 600,000 people, ordinarily has 180 polling places, but there were just five open on Election Day. Madison, a city of 255,000 people, ordinarily does not experience half of its poll workers missing, as it did that Tuesday. (It was surely not lost on the Court's conservative majority that these cities ordinarily vote overwhelmingly for Democrats.) And, of course, Wisconsinites do not ordinarily have to choose between risking viral infection or staying home and forgoing their sacred right to vote.

Unfortunately, the Supreme Court's hostility towards democracy has become ordinary. 

Our democracy has been under assault for the past two decades, and the Supreme Court has dealt many of the sharpest blows. Since 2000, the court has ordered the state of Florida to stop counting ballots and handed the presidential election to a Republican who lost the popular vote, gutted the Voting Rights Act, upheld racist voter ID laws in Indiana, allowed a torrent of dark money to flow into our electoral process, and authorized racially biased voter purges in Ohio. 

It is time we do something about the Roberts court's assault on democracy. Expanding the Supreme Court is our only option. 

Despite substantial evidence that the Roberts Court and democracy cannot coexist, some are hesitant to embrace "court expansion" — increasing the number of seats on the Supreme Court the next time Democrats control the Presidency, House, and Senate — as a solution. They fear it would cause a "death spiral" in which Republicans would simply expand the court again should they retake unified control. (This, of course, ignores that the Republicans have already altered the size of the court before — in 2016, when the Senate reduced the size of the court to eight for an entire year rather than seat Merrick Garland, Barack Obama's nominee to replace the late Antonin Scalia. Republicans paid the steep political price of winning the presidency, House, and Senate that fall.) 

But court expansion would not cause a death spiral of democracy. That death spiral is already here. And it will only get worse if we do nothing.  

The Roberts court — with a majority of five conservative justices, four of whom were appointed by Republican presidents who took office after losing the popular vote — has made it unnecessarily difficult for all voters, especially Democratic voters, to cast their ballot. Justice Roberts famously declared that "things have changed in the South" in his decision striking down key provisions of the Voting Rights Act. Five years later, Georgia's then-Secretary of State, Brian Kemp, stole an election from Stacey Abrams, a Democrat, by engaging in the exact form of black voter suppression the Voting Rights Act was meant to check. Thanks to the Roberts court, the affront to democracy we saw in Georgia — more than over 1.5 million mostly black voters purged, dozens of majority-black precincts closed, defective voting machines, and four-hour lines to vote in majority-black neighborhoods — was legal for the first time since the era of Jim Crow. 

The Supreme Court's antidemocratic streak reverberates far beyond voting. Thanks to the Roberts Court, our campaign finance system operates so that, overwhelmingly, the candidates who make it onto the ballot and win elections are captured by corporate interests and wealthy donors. This is true of both Democrats and Republicans. These candidates hold views that are out of step with those of the average American, many of whom choose to stay home rather than vote for candidates who are more responsive to their donors than their constituents. 

Even if Democrats overcome these hurdles to get more votes, they will be met with structural barriers that will keep them out of power. Thanks to the GOP's aggressive partisan gerrymandering, Democrats have to routinely produce historic turnout to win House majorities. In 2018, the Democrats' seven-point win resulted in a 36-seat majority; in contrast, the GOP's seven-point win in 2010 produced a 49-seat majority. The Senate is even more undemocratic, and only getting worse: Democrats won the Senate popular vote by 9 million in 2018 and lost seats. By 2040, 30% of Americans, people from disproportionately white and rural states, will be represented by 70% of U.S. senators. 

Do not expect the Roberts court to level this horribly uneven playing field. It has refused to address even the most blatant examples of partisan gerrymandering: in 2018, the conservative majority declined to intervene against Wisconsin's state-level gerrymander, which enabled Republicans to win 63 of the 99 state assembly seats with only 44.8% of the vote. Worse yet, it held that partisan gerrymandering was a political question that no federal court is allowed to touch in the future. The court is also likely to rule against measures that would make the Senate less undemocratic, such as granting statehood to Washington, D.C. 

Democrats have a bold plan to restore democracy, but it may not pass muster with a hostile Supreme Court. In 2019, House Democrats passed the For the People Act (H.R. 1) to counteract a decades-long conservative assault on democracy. It includes measures like automatic voter registration to add nearly 50 million voters to the rolls, campaign finance reform to reduce the outsize influence of big money, independent redistricting to end partisan gerrymandering, and prohibitions on voter suppression. But the Roberts court cannot be trusted to faithfully interpret that law. In Husted v. Randolph Institute (2018), the court manipulated the National Voter Registration Act of 1993, a statute meant to expand voter registration, to allow Ohio to purge one million voters, a disproportionate number of whom are black. Given that recent precedent, and the Court's general antipathy toward democracy, there is every reason to believe that the Roberts court will come up with pretextual reasons to strike down crucial provisions of the For the People Act, which would both bolster our democracy and threaten unified Republican control. 

Make no mistake, Democrats want to compete for the support of the American people. Unfortunately, Republicans have shown that their strategy for winning is to cheat. Very recently, President Trump admitted that when more people vote, Republicans lose.

We cannot restore democracy without fixing the Supreme Court. That is precisely why court expansion is so urgently necessary.

Practically speaking, a plan that pairs court expansion with legislation to restore our democracy will naturally provide a bulwark against Republican retaliation. With 50 million voters added to the rolls and fair congressional maps, it would be exceptionally difficult for Republicans to recapture unified control of the political branches and pass their own court expansion bill. 

We live in a time of crisis. Aside from the coronavirus pandemic, we have 10 years left to prevent irreversible climate catastrophe. Income inequality is the highest it has been in a century. More than 30 million Americans do not have health insurance, a number that is growing. A woman's right to choose is constantly being undermined; the Supreme Court could overturn Roe v. Wade tomorrow. More than 2.3 million Americans are incarcerated, while 12 million undocumented people in this country live without legal protection. Millions of LGBTQ people live without protection from employment discrimination under federal law. At least 33,000 people in the United States die each year from gun violence. 

Our ability to respond to these crises depends on enfranchising the 53 million eligible voters who cannot or will not participate in our democracy — exactly the sort of measure the Roberts court will not allow. 

We face a choice: allow these crises to worsen, or expand the court.

By Mondaire Jones

A graduate of Stanford University and Harvard Law School, Mondaire Jones is a former Justice Department staffer under President Obama and lawyer in the Westchester County Law Department. He is a Democratic candidate for the U.S. House of Representatives in New York’s 17th congressional district.

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