Are Democrats open to expanding the Supreme Court? After Barrett, it looks that way

Mainstream Senate Democrats warn "there will be consequences" for the radical Barrett push. Let's hold them to it

By Sophia Tesfaye
October 28, 2020 10:00AM (UTC)
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Judge Amy Coney Barrett (Anna Moneymaker/Pool/Getty Images)

The last weekend of January 2017 was a radicalizing moment for many Americans. Less than 10 days after being sworn into office, Donald Trump issued an executive order carrying out his campaign promise to ban Muslims from entering the United States. As more than 100 people were detained in airports across the country, thousands came out in the frigid winter weather to protest such blatant bigotry. 

Days before that, millions around the world took to the streets during the Women's March to symbolically push back against Trump's inauguration. The fight continued six months later, as masses of Americans again came out to demonstrate against the Trump administration's zero-tolerance policy of child separation at the U.S.-Mexico border. There have since been grassroots campaigns to lobby against the repeal of the Affordable Care Act at town halls in red districts, rallies against Trump's nakedly partisan Supreme Court nominees in Washington, and a blue wave of Democratic midterm election victories across the country. To top off this moment of protest and resistance, this year has brought the type of nearly nonstop protests for Black liberation not seen since the civil rights movement of the 1960s. 

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So Monday night's shameful victory lap for newly-confirmed Supreme Court Justice Amy Coney Barrett at the White House — an open troll of liberals, progressives and especially feminists just a week ahead of a momentous presidential election — may finally be the moment that radicalizes the ostensible representatives of the people who have shown up in historic fashion over these last four years. 

Barrett, a conservative activist whose main experience is as a law professor at the University of Notre Dame, was confirmed by a Senate vote of 52-48 on Monday night, with no Democrats voting in favor. (One Republican, Susan Collins of Maine, voted no.) It's the first time a Supreme Court nominee has been confirmed without a single vote from a major opposition party since 1869. Of course, that didn't stop the Trump campaign from turning Barrett's 11th-hour appearance at the White House into a literal ad for the president's reelection campaign. 

Republicans have cunningly exploited our system to entrench their minority rule. One-third of the Supreme Court has now been nominated by a president who got three million fewer votes than his opponent and confirmed by a minority-controlled Senate that represents more cows than Americans. This is not sustainable — and there are signs that top Democrats finally understand that. 

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Sen. Chris Coons of Delaware, a Democratic member of the Senate Judiciary Committee, said on Monday that there needs to be a "wide-open conversation" on the ideological balance of the federal courts after Republicans confirmed 220 Trump-appointed judges in four years — the most since Jimmy Carter's presidency.

 "Yes, the two Supreme Court cases that have been stolen, where these processes that are just wildly hypocritical have been used to jam through partisan nominees. But we've got to look at our federal courts as a whole," Coons told MSNBC's Rachel Maddow following Barrett's confirmation. 

Coons is a close ally of Joe Biden and one of the Senate's staunchest institutionalists. If he's willing to talk court expansion, it's safe to assume he's taking his marching orders from the Democrats' presidential nominee. Coons suggested as much in a recent interview, telling Axios, "If we happen to be in the fact pattern where we have a President Biden, we'll have to look at what the right steps are to rebalance our federal judiciary."

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Another Judiciary Committee Democrat, Sen. Richard Blumenthal of Connecticut, called out Republicans for "shattering the norms and breaking the rules and breaking their word," warning that "there will be consequences" in a floor speech on Monday. 

"Nothing less than everything is at stake. A shift in the balance of the court that will last for decades if we do not correct it — and believe me, there are appropriate measures that should be considered," he said. 

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Even Sen. Joe Manchin of West Virginia, the most conservative Democrat in the Senate — who conceded he might have supported Barrett for a lower court seat, appeared taken aback by Republicans' aggressive push to ram her nomination through in record time. "Look, there's not a judicial crisis," Manchin said this week. "There's still five conservatives to three progressives. What are they afraid of that they need insurance? The election and the Affordable Care Act."

Maine Sen. Angus King, an independent who caucuses with the Democrats, pointed out on CNN that "the size of the Supreme Court is not set in the Constitution. It's up to the Congress. It's changed seven times over our history." King, who still opposes filibuster reform, also noted that "the Republicans who are clutching their pearls now … in three states … over the last three or four years, the Republicans have packed their courts!"

Sen. Elizabeth Warren of Massachusetts tweeted: "Every option needs to be on the table to restore the Supreme Court's credibility and integrity. Every option to expand our democracy. Every option to ensure that all Americans have equal justice in our courts and representation in our institutions."

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For his part, Senate Majority Leader Mitch McConnell, facing his own re-election fight in Kentucky, was not content with simply gloating about his historic victory. He issued a threat to Democrats after Barrett's confirmation. "Every high school student in America learns about Franklin Roosevelt's unprincipled assault on judicial independence," he told Politico, warning Democrats not to repeat it. 

The climate has shifted: Democrats can't return to moderation and prudence now without risk of being seen as negligent. In the past, Democrats have defended their reluctance to hold Republicans accountable as an effort to protect our system, but the effect of their refusal to wield power has been the shattering of our system and the near-complete corruption of our government. This is no time for milquetoast half measures. There's simply no future for the current vision of Democratic politics unless the party's elected leaders are finally willing to take action to protect the nation from domestic enemies. 

The number of senators needed to impeach a Supreme Court justice is 67. That's a pretty high bar. But should Democrats win control of the Senate next week, they could well decide to investigate the dark-money forces that promoted Barrett's nomination, as well as that of Justice Brett Kavanaugh. 

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"Should we expand the court? Well let's take a look and see," House Speaker Nancy Pelosi told MSNBC host Chris Hayes Monday night. "Not just the Supreme Courts, but the other courts," she added. "In 1876 there were nine justices on the court. Our population has grown enormously since then." Mapping Supreme Court justices to the federal circuit courts, in effect doubling the number of judges interpreting our laws at the highest level, is one of many ideas Democrats must explore. No option is too radical for this moment. 

Biden has pledged to review options put forth by "a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberals, conservatives" on "how to reform the court system because it's getting out of whack" within his first six months in office. Should Biden win next Tuesday, there is no reason why those Americans who were radicalized by the first six months of Donald Trump's presidency should let up during the first six months of Biden's presidency.


Sophia Tesfaye

Sophia Tesfaye is Salon's Deputy Politics Editor and resides in Washington, D.C. You can find her on Twitter at @SophiaTesfaye.

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