The Washington PostDemocracy Dies in Darkness

Opinion Why the Democratic candidates need to start talking about the Supreme Court

(Eric Gay/AP)
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The Democratic candidates for president will be holding their fourth debate on Tuesday, and through the three previous debates, what may be the most consequential issue of the 2020 campaign has been all but ignored.

No matter what policy issue you think is most important — health care, climate change, reproductive rights, gun violence, immigration, workers’ rights or anything else — its fate will be determined by the Supreme Court. That’s why a coalition of progressive groups — the American Constitution Society, the Committee for a Fair Judiciary, Demand Justice, Indivisible, Take Back the Court, and the Women’s March — on Monday released a letter urging the moderators of Tuesday’s debate to finally get the candidates to engage on this question:

Yet in the three rounds of debates – nearly 15 hours of discussion around bold policies every candidate promises to enact if elected – zero questions have been asked about what candidates would do to ensure their agenda is not stymied by an activist conservative court that was rigged against them when Mitch McConnell and the Republicans manipulated the size of the court in 2016/17 to steal a seat.

The failure to focus on the issue of the court is an atrocious oversight on the part of the networks that have aired and moderated these debates, for three reasons:

1. The Supreme Court touches nearly every key policy issue. Just in the term that began this month, the court will have the chance to eviscerate abortion rights, decide whether LGBTQ people deserve protection from discrimination, determine the fate of the “dreamers” and strike down the Affordable Care Act, to name but a few issues. We’re already seeing the fruits of a decades-long effort by the right to remake the courts, and if President Trump gets a second term, he could well replace both Ruth Bader Ginsburg (age 86) and Stephen G. Breyer (age 81), producing a 7-2 conservative majority and cementing a shift more radical than voters can begin to understand.

2. The Supreme Court is the cornerstone of Republican minority rule. Right now the GOP holds the bulk of power in Washington — the presidency, the Senate, the Supreme Court — despite the fact that they have won the popular vote in only one of the past seven presidential elections. Republicans control the Senate despite the fact that millions more Americans voted for Democrats to sit in that chamber. Conservatives on the court have used their power to ensure that GOP minority rule prevails: gutting the Voting Rights Act, validating partisan gerrymandering and rubber-stamping nearly every technique of Republican voter suppression that comes before them.

3. If a Democrat becomes president, the Supreme Court could kneecap their entire agenda. Imagine that Democrats win the White House and take control of the Senate in 2020. They pass sweeping health-care reform, enhancements of workers’ rights, strong action on climate change, enhancements of voting rights, anti-corruption reforms, and so on. If these bills pass, Republicans will quickly file lawsuits to get them struck down. And the Supreme Court could do just that, declaring piece after piece of progressive legislation unconstitutional. The conservative judges would effectively place the United States in a kind of policy holding pattern, until the next Republican president and Congress can take office and continue marching our laws to the right whether that’s what the voters want or not.

So voters need to know how the presidential candidates understand this problem and what to do about it. And this is an area where there are differences that ought to be hashed out. Some, including Elizabeth Warren, Pete Buttigieg and Kamala D. Harris, have expressed an openness to expanding the number of seats on the court, at a minimum to rebalance things after Republicans twice changed the number of seats in 2016-2017 following the death of Antonin Scalia (first they changed the number of justices from nine to eight, refusing to consider Barack Obama’s nominee Merrick Garland; then after Donald Trump was elected they changed the size of the court again, bringing it back up to nine). Other candidates, including Bernie Sanders, oppose the idea, while some, including Joe Biden, haven’t yet taken a public position. Another idea, to create term limits for justices, has also garnered interest from some candidates. They should all have to say where they stand.

It’s almost certain that if a Democrat wins in 2020, that president’s relationship to the Supreme Court — the cases the court decides, the justices that president will appoint, the future of the court’s makeup — will be one of the most important factors shaping their presidency. No Democratic voter should make his or her decision without knowing what the candidates intend to do about it. So it’s past time to have a full discussion about how the Supreme Court is going to affect all of our lives in the years to come.

Read more:

Leah Litman: The Supreme Court could get a lot more undemocratic

Sheldon Whitehouse: The Supreme Court has become just another arm of the GOP

Dana Milbank: Will Gorsuch abandon his judicial philosophy to get what he wants?

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