For the past year, I’ve sat through a lot of anxious liberal pearl clutching commentary about the danger of a stolen Presidential election. “This time was practice, next time they’ll get away with it” or some variation of this is usually what I run into the most. What it ignores is the fact that we don’t have to wonder what would happen if the right decided to steal a Presidential election in this country. It literally already happened, just over 20 years ago when George W. Bush was selected President. That year Bush and Vice President Al Gore contested the perpetual battleground state of Florida and though many years have passed since, the details of that campaign are still shocking to many. The Governor of Florida was John Ellis Bush (Jeb!), the brother of the Republican candidate. The Secretary of State, Florida’s Chief Election Official, was Katherine Harris who also served as campaign surrogate for Bush. Then of course there was a conveniently badly designed ballot that likely caused perhaps more than 1,000 accidental votes for Pat Buchanan that were meant for Al Gore.
This should’ve been an easy decision for the Supreme Court. The recount should have continued, and the final results honored, which several audits after the fact suggested a narrow Gore victory. However, the court stopped the recount and Bush became President not by his 537 vote margin in Florida but by a 1 vote margin in the Supreme Court. The justices who eventually sided with Bush in Bush v. Gore were either appointed by Bush’s father or another Republican President. George W. Bush went on to launch an illegal war in Iraq that killed hundreds of thousands of civilians and displaced millions more.
This week, the Supreme Court will hear arguments in Whole Women’s Health v. Jackson. This will almost inevitably decide the fate of Roe v. Wade, likely ending with the partial or complete overturning of that decision. Legal abortion will not be the only lightning rod the court touches in the next term, and if the conservative bona fides of the majority are to be believed then we are about to enter a radically more conservative judicial environment than at any point in living memory. However, that doesn’t need to be true, the solution is right in front of us: Expand the Supreme Court.
This has largely disappeared from political discourse, but it is an idea worth returning to, especially when one considers that the most prominent argument of the opposition doesn’t hold up to scrutiny.
“Republicans will pack the Court when they win again.”
This underestimates the difficulty Republicans might have winning elections in a world with full enforcement of the voting rights act, no Citizens United, and the prohibition of hyper partisan redistricting. This is a foregone conclusion in an expanded Supreme Court with a liberal majority. Can Republicans win an election on a level playing field? Not with their current coalition, in fact expanding the Supreme Court may be the only way to get the GOP to rethink its Trump orientation which has never achieved majority support. Some people might argue that there would be voter backlash to expanding the court, I would expect as much as well. However, there would perhaps be a more engaged and less apathetic voter base for Democrats, if they saw the party leave everything on the field to defend the progressive gains of the last half century instead of accepting defeat.
Furthermore, if the Democrats add 6 seats to achieve a 9-6 majority and Republicans add 4 more to get a 10-9 majority that’s a good thing. If your goal is fewer knee-jerk reactionary decisions, more judges is better. If a majority decision needs to find 10 votes instead of 5, they necessarily will end up a little more moderate to hold the coalition together. We saw this happen in the 5-4 court where a number of decisions had to become more moderate for Chief Justice Roberts or Justice Kennedy to deliver the swing vote.
There’s also the question of “So what if they do?”. What if Republicans win, and invalidate the changes to the court and repack it? What if the court becomes a political tool? I only have two questions, how is a 10-9 conservative majority any worse than a 6-3 one and isn’t the Court already a plainly political tool? Our current reality is we lose, a lot, on issues of monumental importance. Institutionally we are fucked, to say it politely, by the Senate. There is a bias built in to favor rural representation and Democrats, partly due to their own failures and partly due to trends outside of their control, will not be competitive with white rural voters for decades save for a major realignment. Republicans appear to be at worst even money to recapture both chambers of Congress next November. Should they retake the Senate, it is more likely than not that they would expand that margin in 2024 when West Virginia, Ohio, and Montana will have their Democratic Senators for the first time face the high turnout Republican electorate of a Presidential year. This could mean a decade, but perhaps longer, of Republican dominance in Congress. If we don’t level the playing field now, the chance could be lost.
I’d refer anyone to the legal scholar Erwin Chemerinsky who wrote “The Case Against the Supreme Court”. He has said,
“Throughout history the court has overwhelmingly favored corporate power over employees, consumers, and the public, and has favored government power over individuals’ rights…I think, too, that the Court’s role has never been clearly enough defined in terms of enforcing the Constitution, protecting minorities, resisting the passions of the majority in times of crisis.”
The Warren Court was an aberration, it is not a coincidence that the vast majority of decisions that we have held up as shining examples of the wisdom of American jurisprudence are from that era. The Court traditionally has not been a friend to democracy, civil liberties, human rights, or really in a number of ways the constitution. This is all to say, the Court as an institution is something badly in need of fixing and it’s shocking that it hasn’t happened sooner.
Of course, this conversation is purely academic. There are not enough votes in the Senate to give the elderly access to dental care, it’s too expensive and after all there is a war machine that needs financing. So, it’s doubtful that there’s enough votes to even have a serious discussion on Court expansion. It’s not just Joe Manchin, it’s also President Biden and most third way types in Congress who balk at expanding the Court. Therefore, we remain on this roller coaster with the operator seemingly unaware that the ride has no brakes and no track after the fall.