This is the terrifying political hellscape the Republican Party is determined to prevent. For a party with a dwindling base and a broadly unpopular agenda, there is no more profound threat than democracy.
In the first day of questioning in Amy Coney Barrett’s confirmation hearings for the Supreme Court, she gave no indication that she will be anything but an enthusiastic participant in their effort to hold it back.
Following the spectacularly disingenuous blank-slate strategy of all Republican nominees, Barrett insisted that she has no relevant beliefs about the Affordable Care Act, the duly enacted law Republicans are asking the court to strike down, or any other law for that matter. “I can’t make any prior commitments” about whether she’d side with the GOP in its deranged lawsuit seeking to have the ACA nullified. “It would be inconsistent with judicial independence.”
And Barrett was asked: Would she commit to recuse herself from disputes over this election, given that the president has basically said she must be confirmed to help him steal it? She would not.
Every Republican watching surely nodded in satisfaction.
But Republicans see another threat, that a future Congress and president — perhaps even next year — might add more justices to the Supreme Court. Many liberals support this idea, not only because Republicans reduced the number to eight in 2016 and then increased it back to nine once President Trump took office, but also because the highly ideological conservative supermajority Barrett will solidify has been assembled even though Democrats won more votes in six of the past seven presidential elections.
So in Barrett’s confirmation hearings and a hundred cable news appearances, Republicans are raising the alarm. As Sen. Ben Sasse says, doing his best faux-outrage, expanding the court would be “the suicide bombing of two branches of government,” and “It’s grotesque” that Joe Biden won’t take a firm stance on whether at some future point he might support such a move (Biden says he’s “not a fan” of the idea, but that still leaves the possibility open).
Are Republicans being hypocrites on this question? Of course they are; back in 2016 many of them suggested that they might hold open one or more seats for an entire presidential term if Hillary Clinton won the election.
But there’s something more important going on than mere hypocrisy. Right now the bulwarks of Republican minority rule are under profound threat. This election they could lose both the presidency they won despite losing the popular vote, and the Senate which they control despite the fact that millions more Americans voted to be represented there by Democrats. Should that happen, the Supreme Court will be all they have left at the federal level.
Their minority rule has never been in more peril than it is right now.
And they’re counting on that Supreme Court to issue rulings that make it possible for them to retake power despite their minority status, by solidifying partisan gerrymandering, validating voter suppression and inhibiting the government’s ability to protect voting rights — and strike down laws passed by Democrats.
It’s all on the line for Republicans. Which is why they’re so freaked out about the idea of Democrats expanding the court.
Republicans know that they have a real advantage in that debate, which is that the elite media hold Democrats to a very different standard. Journalists simply accept that Republicans are shameless and ruthless — that they will trample any norm and break any tradition if it gives them an advantage — as the way things are.
On the other hand, when Democrats even contemplate playing hardball, they can expect to be hounded and scolded until the process question blocks out every other consideration. But here’s the problem: If one side breaks all the norms and the other side respects them, the norms lose all meaning. They don’t create a civil situation or a well-operating legislature. They’re just a shackle constraining one party but not the other.
Furthermore, sometimes you need the threat of norm-breaking to retain a system where norms mean something. Right now, Republicans obviously don’t fear any punishment for their own actions. So Democrats have to make a credible threat to retaliate, or they’ll just keep getting walked over.
That applies to the court itself as well. With a 6-3 majority, the conservative justices will be tempted to go hog-wild, not just nullifying the ACA and overturning Roe v. Wade, but invalidating any meaningful law a Democratic-led Congress would pass, dismantling the administrative state, striking down the rest of the Voting Rights Act, rubber-stamping discrimination against gay Americans, making it impossible for unions to operate, eliminating all campaign finance regulations, forbidding the government from regulating the environment, and who knows what else.
But the justices should have in their minds that if they do that while Democrats still control the presidency and Congress, four seats could be added to the court and there would be a 7-6 liberal majority.
Which would be at least a closer reflection of the will of the public — especially since, if Biden wins in November, Democrats will have won the popular vote in seven of the past eight presidential elections.
I couldn’t put it better than Sen. Lindsey O. Graham did this week on Fox News:
If we lose the House, the Senate, and the White House, they’re going to change the rules of the Senate, Maria, so you only need a majority. Anything coming out of the House sails to the Senate. They’re going to expand the court from nine to whatever number they need to make it liberal. They’re going to abolish the electoral college, which means New York and California pick our president. They’re going to change America.
Imagine how awful it would be if “you only need a majority” to pass a bill! And the idea that the 59 million Americans who live in New York and California would actually have their votes matter in a presidential race as much as people who live in Wisconsin or Florida? The very thought makes Graham want to retch.
This is what Republicans fear. Democracy is pounding on their door, and they’ll do anything to stop it.