But there’s another reason this outcome could give reform more momentum: It might also scuttle efforts to reform the machinery of democracy itself in a more majoritarian direction. The minority rule that Republicans are seeking to strengthen by advancing the Ginsburg replacement in this fashion will end up further entrenched in the rules of political competition themselves.
A newly released report from the progressive group Take Back the Court — which advocates for Supreme Court expansion — helps illuminate this possibility.
If Democrats win the presidency and both chambers of Congress, they will likely try to advance a version of H.R. 1, the pro-democracy reforms that House Democrats passed in 2019.
Such a package might counter existing counter-majoritarian tactics with reforms such as mandating that states use nonpartisan redistricting commissions, making it harder to use voter purges as a weapon of disenfranchisement, and automatic voter registration.
But as this new report argues, a 6-3 conservative court would likely strike down those reforms.
The idea behind nonpartisan redistricting commissions is to remove the power to draw district lines for state legislative and congressional districts from state lawmakers, de-weaponizing partisan gerrymandering for both parties.
A 6-3 conservative court would likely strike down a mandate for such commissions, the report notes. It could rule that any redistricting process that doesn’t sufficiently involve the state legislature violates the Constitution’s requirement that state legislatures “prescribe” the manner of holding elections, even though Congress has the authority to “alter” rules.
This might even be used to invalidate such commissions created by state ballot referendum. “This could foreclose all avenues for ending partisan gerrymandering,” the report concludes.
The court could also strike down a national automatic voter registration system, which would enroll eligible voters when they have contact with various government agencies, with an opt-out provision. Automatic registration could add tens of millions of voters and frustrate efforts to make voter registration harder for partisan purposes.
The report notes that the court might do this by ruling that automatic voter registration violates the First Amendment right not to participate (even though it doesn’t compel registration) or that it improperly removes election authority from states (even though it would only impact federal elections).
And the court could strike down an effort by Congress to require that states only purge voters from the rolls when there’s “objective and reliable” evidence of their ineligibility to vote, to avoid this tactic’s deliberate disenfranchising effects. It could uphold specific state justifications for purging as reasonable evidence of that ineligibility, even if their true intent is to disenfranchise, the report says.
As Eric Levitz writes, the Republican move to replace Ginsburg with only weeks until the election is consistent with the refusal to give a hearing to Garland many months before the election, in one crucial sense. In both cases, Republicans are subverting norms to the naked exercise of power precisely because the American right’s opposition to everything from universal health care to Roe v. Wade to acting on climate change is deeply unpopular, which makes the courts their best hope for countering those things.
As Levitz says, “the conservative agenda is poised to grow more anti-majoritarian in the coming years, as the unprecedentedly left-wing millennial and zoomer generations reach their prime voting years.”
In this regard, striking down efforts to reform counter-majoritarian features of our political system, thus keeping them baked into the rules of political competition, would be another big conservative advantage.
Coming from a court majority that is lopsidedly conservative even though Democrats have won the popular vote in six of the past seven presidential elections, it would further frustrate the very ability of popular majorities to elect representatives to enact the progress they hope to see.
None of this means Supreme Court reform must take the form of court expansion. As law professors Ryan Doerfler and Samuel Moyn detail, there are other ways of diluting the court’s ability to overrule the elected branches — for example, by requiring a supermajority of justices to strike down laws.
This type of reform tries to return more power to the “democratically accountable branches,” as Doerfler and Moyn note, whereas expansion undoes Republicans’ own efforts to pack the court and dissuades them trying more of the same in the future. Of course, as Joshua Holland argues, both types of reform might be pursued simultaneously, or in tandem, with the threat of expansion itself constituting the use of power to compel Republicans to agree to the other reforms.
In addition to righting previous wrongs, a guiding principle here — one that might be called “institutionalized de-escalation” — should be the goal of formally taking the anti-democratic, counter-majoritarian, fair-play-undermining weaponry off the table for both sides, an approach I’ve urged in my book.
One example of this is a proposal for limited 18-year terms for Supreme Court justices, with each president appointing one, which lowers the stakes on each appointment battle. Nonpartisan redistricting commissions are another example in the area of voting rules.
But whatever agenda for the courts Democrats do settle on, it’s obvious that the court striking down democratic reforms such as those in H.R. 1 will only embolden them to act in some way.