On the other hand, according to Senate Republicans, Democrats are also the model for the latest Supreme Court fight. “If the president were Joe Biden or Hillary Clinton and Chuck Schumer were the majority leader,” Cruz told ABC’s George Stephanopoulos on Sunday, “the odds are 100 percent” that Democrats would seek to nominate and confirm a replacement for Ruth Bader Ginsburg as soon as possible. “If the shoe were on the other foot and the Democrats had the White House and the Senate,” Barrasso argued on NBC, “they would right now be trying to confirm another member of the Supreme Court.”
And you know what? They’re right — and going forward Democrats should likewise remember to ask: “What would the other side do?" Facing a 6-to-3 conservative majority on the nation’s highest court for years to come, Democrats have mighty obstacles to overcome.
How would a Democratic Party that played GOP-style hardball approach them? Some reforms are obvious: Deep-blue D.C. (population 700,000) and more politically mixed Puerto Rico (population 3.2 million) should have the same statehood status as Wyoming (579,000) and Vermont (624,000). Supreme Court judges should be subject to term limits, so that the balance of this crucial institution is not subject to the whims of the Grim Reaper. And when it comes to the broader balance of power in the judicial branch, the next Democratic president should brook no delay on nominees to lower courts.
Others are less clear-cut. A number of Democrats have come out in support of expanding the number of Supreme Court justices, all but in direct retaliation for President Barack Obama’s nominee Merrick Garland. Often left unanswered is the question of what happens when Republicans retake power and inevitably expand the court in their direction. How does the cycle of an ever-larger end before reaching absurd levels? This is not to say Democrats should not look to expand the court — especially if they take the White House and the Senate but Republicans ram through a nominee in the lame duck anyway. It’s just that a bigger Supreme Court is not the panacea that some think.
In the meantime, Democrats should crank up the political pressure on the court. As Matt Karp points out at Jacobin, the politicization of the Supreme Court is hardly unprecedented. In the late 1850s and early 1860s, even as anti-slavery Republicans gained control of both branches of government, the Supreme Court remained firmly in pro-slavery hands, led by Chief Justice Roger Taney, the author of the infamous Dred Scott decision. So anti-slavery forces unleashed broadsides against the court’s authority. The justices, said Maine senator (and Abraham Lincoln’s future vice president) Hannibal Hamlin, “had no more authority to decide a political question for us, than we had to decide a judicial question for them.”
Lincoln did add an additional justice, writes Karp, but “more fundamentally, though, [Republicans] simply ignored the proslavery precedents established in the 1850s. In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories — a direct violation of the majority ruling in Dred Scott. The court meekly acquiesced, recognizing that its political power was long since broken.”
With the Supreme Court poised to return to its role as a right-wing fortress, with Republicans ever more committed to minoritarian rule, Democrats must leverage the voice of the people. That means legislatively repairing the damage the court has already done (such as by passing a new Voting Rights Act) and making it as politically difficult as possible for reactionary justices to legislate from the bench. However infallible justices style themselves, the Supreme Court has shied away from unpopular decisions in the past. Given that this movement will be in the service of preserving protections for women, minorities and other historically oppressed groups, it’s hard to think anything more American.