GELFAND’S WORLD--The sudden vacancy on the United States Supreme Court (aka Scotus) following the death of Ruth Bader Ginsburg will ultimately lead to severe changes in American government.
Which way those changes go depends on a few senatorial races and the likelihood (right now pretty strong) that Joe Biden will defeat Donald Trump for the presidency. We begin with the assumption that Mitch McConnell will attempt to bring a Trump Supreme Court nomination to a vote in the Senate. Whether the nomination and the vote take place before or after the November 3 election hardly matters -- it is unlikely that the Republicans would give up the chance to gain a solid 6 – 3 conservative majority on the court, perhaps even strong enough to overturn the Roe v. Wade abortion ruling of 1973.
The senatorial Republicans are stuck with a bit of pie on their collective faces now that the Supreme Court seat is within their greedy little clutches. Everyone in the civilized universe remembers how the senate stole Obama’s nomination of Merrick Garland in 2016 – they simply refused to bring the nomination to the floor. There was a little bit of pretend argument attached to the action, but everyone understood that it was nothing more nor less than a powerplay of the rankest sort. There was some jibber-jabber about it being an election year and that the next elected president should get the chance to make the nomination. This was almost a whole year before the end of Obama’s term.
We are now in a situation that is a lot more extreme. We are down to the last 44 days before the ballots have to be submitted.
So back in 2016, the Republicans pretended that the election season was ongoing even though it was only February, and pretended that this was enough reason to sit on Garland’s nomination. But more recently, when McConnell was asked by a reporter what the senate would do if a Supreme Court vacancy should occur, the answer was that they would fill it. McConnell didn’t even bother to make up a story about why times had changed. He made clear that he would use the power he had, just as he had done previously, and without regard to rhyme or reason.
As of now, at least one Republican senator has said that a vote on a Trump nomination should not happen until after the election. It’s hard to defend this position on any rational basis. In fact, it would allow endangered senators up for reelection to avoid having to take a position until after their elections. This would potentially be important, for example, for Senator Steve Daines of Montana, who could potentially lose votes no matter which way he votes on the nominee.
Here is what I am guessing is going to happen: McConnell and Trump will figure out that if they want that solid 6th conservative on the Supreme Court, they might as well make it happen before the election. They could wait until late November, but that seems less probable.
What the Democrats should do
Let’s assume that Nate Silver’s calculations over at FiveThirtyEight.Com turn out to be correct, and that President Biden joins with a narrow Democratic majority in the Senate. Note that Silver hasn’t presented his prediction for the House of Representatives, but we might as well take the optimistic viewpoint for the sake of this discussion.
The Democrats would come into January 20, 2021 with potential control over the government, provided the Democratic majority in the Senate is willing to get rid of the filibuster. This does not take any major effort other than for a simple majority to approve of Senate rules which no longer include filibustering. They could even eliminate the filibuster solely for judicial appointments (including the Supreme Court) if they like, but that would be a serious error.
Because – think about this – there is going to be a two year window where real progress can be made, and this needs to include beefing up the Affordable Care Act and repairing a lot of damage to environmental regulations. It would be really useful not to have to worry about a reactionary Supreme Court as these repairs are accomplished.
Another problem to be repaired is the Citizens United decision that gives big money a lot of political power. It may be repairable by a combination of actions by the new congress and a rebuilt Supreme Court.
Let’s backtrack for a moment and consider that when Mitch McConnell refused to bring the Merrick Garland nomination to a vote in the Senate, he was not actually violating the Constitution. He was, it’s true, violating a lot of precedent and tradition, but as Paul Krugman had been pointing out for more than a decade, the Republicans are not really conservative, they are revolutionaries. McConnell didn’t care about maintaining the grand traditions of the United States Senate. He did care about advancing his version of reactionary politics. But he could get away with quite a bit of troublemaking without actually forcing the Supreme Court to rule him out of order. It wasn’t even a violation of the Constitution to acquit Donald Trump on the impeachment. The Constitution only calls on the Senate to try the case and hold a vote.
So what innately Constitutional remedies do the Democrats have? The most obvious is to add more justices to the Supreme Court. There are one or two arguments against this action, but multiple arguments in favor.
The arguments against are simple. Nine justices is the way it’s been for all of living memory. According to tradition, justices get appointed as vacancies occur. A previous attempt to increase the size of the court during the administration of Franklin Delano Roosevelt failed. In fact, it has been referred to as an attempt to “pack the court” ever since then. It has been treated as an attempt to change the balance of power between the judiciary and the other branches. Hold that last thought, because it is important and we will come back to it.
So what are the arguments in favor of packing the Court?
The first argument is that the court is just plain not very good. Sorry to put it so bluntly, but this is one of those structures that the founders didn’t get quite right. It’s like the fact that all states get two senators because at the time, this was one of the political requirements for keeping the slave states in the union.
When you look at the Constitutional sections that define the legislature and the presidency, you can see that there was a lot of thought about the power balance between these two branches. For example, the exact number required for the legislature to overturn a presidential Veto was subjected to a very serious debate. Likewise, the specific powers enumerated to each of these two branches were listed carefully.
But when it comes to the makeup of the judiciary including the Supreme Court, the whole thing seems to have been as much an exercise of wishful thinking as anything else. In fact, the appointment of judges is just another one of those powers which was divided between the president and the congress (in this case the Senate) according to what appears to have been just one more among many compromises made by the Constitutional Convention.
The actual power exercised by the Supreme Court and the lower courts seems to have been invented more or less on the fly by the courts themselves. The most important of these powers is the judicial authority to overturn acts of congress based on the court’s feeling that an act goes contrary to the Constitution. We take this authority for granted nowadays, but it was only as of 1803 in the case Marbury vs. Madison that the concept of judicial review was made the applicable law by a decision of the Supreme Court.
Curiously enough, the founders also included wording that should allow the legislature to limit the subjects that the Supreme Court can act on, but this is another one of those things that seems to have been skipped simply due to tradition.
Think back a few years: At one time in our history, we had a Supreme Court that was willing to extend civil liberties in a way that previous courts had not. Under the leadership of Chief Justice Earl Warren, numerous decisions were made that forbade legally enforced segregation in schools and that forbade local school districts from requiring that Christian prayers be said as a part of the school day. Later, under Chief Justice Warren Burger, state laws prohibiting abortions were limited in the case of Roe v Wade.
It could be argued that Roe v Wade had little effect on the lives of most Americans other than women actually seeking abortions, but the Warren court rulings on segregation and school prayer affected a large fraction of the American population. Conservatives tried to develop a movement to impeach Earl Warren.
And the makeup of the Supreme Court has been a political football ever since.
For example, it’s of note that the one justice to dissent in Roe v Wade (William Rehnquist) was later appointed to be Chief Justice by president Ronald Reagan. That’s making a statement. Rehnquist, it has been pointed out, managed to find reasons to support prayer in schools and against criminals’ and prisoners’ rights (see Wikipedia).
Over the last couple of decades, we’ve seen the Supreme Court move in ways that hand more power to businesses and the very wealthy, without protecting the ability of the rest of us to join in political decision making.
So, how about the new Democratic majority bring liberalism back to the Supreme Court. The direct way to do so is to add enough justices to overbalance the reactionary majority that already exists, and which will be made worse by another Trump appointee.
Note that the Constitution does not prescribe the size of the Supreme Court. Rather, it has been left to the workings of Congress. The Supreme Court has been increased in size and even decreased in size by congressional activity over the years.
How did we get to the present number? It goes back to an act passed in 1869. That’s a century and a half. If you look up the population of the U.S. at that time, it was a mere 38 million. That’s 8 times less than the present population. We’ve got plenty of excuse to raise the number of justices, even if it were solely on the basis that there are more people, more court cases, and a more complicated society.
But why not just recognize that Mitch McConnell has left his mark, and the Democrats are entitled to recover some judicial power that McConnell stole by denying the Merrick Garland vote, and then take a little more. That which ye sow, also shall ye reap.
The way to do this is to pass legislation enlarging the Supreme Court to 15 members. It’s a not unreasonable number. And then the new president can appoint the 6 new members so as to fill the newly created vacancies. And those new members should be of a political bent that will overpower the hard-right-wing slant that the Trump and George W Bush appointees have brought to the current court. They don’t have to be radical socialists or even staunch liberals; they just have to be the kind of thoughtful and scholarly people who filled the Warren court.
The rest of this story would be that a newly configured court could go to work on whittling down and even reversing some of the worst decisions of the past half century. Citizens United can be the first, but there are lots more.
But mainly, a newly configured court would allow for some progress that will come out of the congress, including a beefed up Affordable Care Act that includes an increased eligibility for Medicare and Medicaid. An activist congress working in the absence of the filibuster could also pass legislation that would once again limit the payment of excessive campaign donations to political candidates, and we could, for once, expect that a rationalist Supreme Court would not overturn it.
Today (Monday, September 21, 2020 is going to be the day when the American death toll from Covid-19 officially goes over 200,000 (see the Johns Hopkins web site). We now have a reasonable understanding that had only the president provided that little bit of leadership required to ask people to wear masks, we might be at half that number or less. This may not literally be murder, but it is morally equivalent to manslaughter. And it's already at a level that has far surpassed that of the Viet Nam War and is rapidly approaching two World War I’s.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at firstname.lastname@example.org)