Threatening to reform the Supreme Court worked — for now. We must keep the pressure on

The latest term offered both victories and defeats, but the long-term answer is clear: Expand the Supreme Court

Published July 14, 2020 7:00AM (EDT)

Supreme Court Justices, with Chief Justice John Roberts looming in the back (Getty Images/Salon)
Supreme Court Justices, with Chief Justice John Roberts looming in the back (Getty Images/Salon)

Last week, the Supreme Court wrapped up its latest term. For progressives, the mix of positive and disappointing rulings demonstrated both the power and the limits of organizing and advocating around the judiciary. Despite a handful of critical progressive rulings, however, the court's conservative majority remains a co-conspirator in a scheme to sabotage democracy for partisan reasons. And we must not let that reality resign us to a generation of minority rule.

Over the last few decades, the left has largely ceded judicial politics to conservatives. Conventional wisdom held that any discussion of the courts would backfire on Democrats by energizing Republican voters. Fortunately, that outdated view is beginning to erode. My organization, Take Back the Court, is one of several formed during Donald Trump's presidency and dedicated to rebalancing the judicial playing field.

The momentum for court reform was on full display recently, when Sen. Elizabeth Warren, D-Mass., and a bevy of rising stars headlined a rally that we organized with like-minded partners, Indivisible and Demand Justice. A diverse coalition of advocacy groups recently endorsed court expansion to reverse the 2016 theft of the court, when Senate Majority Leader Mitch McConnell squelched Barack Obama's nomination of Merrick Garland. Support for the confirmation of Neil Gorsuch and, most especially, Brett Kavanaugh hangs like an albatross around the necks of many key senators.

Our focus on the court is making a difference in Americans' lives. Chief Justice John Roberts is a shrewd political actor and observer. Make no mistake, data shows that Roberts is every bit as dangerous as his extreme colleagues, such as Clarence Thomas and Samuel Alito. But he also understands that his political and policy aims depend on the Court's perceived legitimacy, and he is willing to play a long game. The threat of court reform seems to have influenced Roberts' decisions to reject Trump's racist repeal of protections for Dreamers, Louisiana's unconstitutional attempt to dismantle abortion rights, and legalized workplace discrimination against LGBTQ Americans. Each of those rulings was a major victory for fairness, equality and the rule of law. And each could easily have gone the other direction without the tireless work of advocates.

At the same time, several decisions over the last two weeks highlight the grave threat the Supreme Court continues to pose to American democracy. Along partisan lines, the justices rejected pandemic-related voter protections in Alabama and ensured that congressional investigators will not get Mueller investigation documents before November's presidential election. Justices Roberts and Kavanaugh all but guaranteed that Trump's financial documents will remain hidden until they can no longer damage him. These decisions are part of a long-term pattern of rulings, such as the infamous Citizens United decision, that corrode democracy for partisan advantage. As America's demographics change, minority rule depends on institutions like the Senate and the Electoral College and anti-democratic practices like voter suppression, gerrymandering and stealing courts.

Roberts has likened his job to that of a baseball umpire calling balls and strikes. In fact, he more closely resembles the infamous point-shaving ex-NBA referee Tim Donaghy. Roberts gives Supreme Court proceedings the auspices of an honest competition, but the fix is in. The Roberts court has issued 80 split-decision civil rulings in which conservative donors had a clear interest. The Roberts majority sided with conservative donors in all of them.

Over the last year, support for structural court reform has grown exponentially. Leaders have proffered plans ranging from term limits to rotating justices between the Supreme Court and other federal benches. Many of these ideas have merit, but only one can plausibly rebalance the court after its 2016 theft: adding more seats.

The Constitution prescribes many details of the Supreme Court's existence. Size is not one of them. Since our founding, Congress has changed the number of justices seven times. The next Congress could simultaneously add seats and confirm judges to fill them. By contrast, other proposals carry implementation lags, during which they could be enjoined and stuck down by the court's current majority.

The beltway "both sides" class will cry "court packing." But make no mistake: the court is already packed. How else to describe manipulating the number of justices in 2016 to block the legitimate nomination of Judge Garland?

Still, this is not a tit-for-tat partisan power grab. After adding seats, Congress should enact additional reforms — like term limits — to depoliticize the court, along with pro-democracy measures like the For the People Act (H.R.1). But we cannot simply lodge complaints with the increasingly-biased referees as a narrow faction bulldozes all norms of law and democracy. Democracy cannot survive if only one side plays by the rules — and if only one side is allowed to govern, no matter how voters cast their ballots.

Now is the time to keep fighting back. We are not powerless against this court unless we allow ourselves to be.

By Aaron Belkin

Aaron Belkin is director of Take Back the Court and professor of political science at San Francisco State University.

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