The Washington PostDemocracy Dies in Darkness

Opinion The answer isn’t court-packing. It’s legislating.

Supreme Court nominee Amy Coney Barrett is sworn in during a confirmation hearing before the Senate Judiciary Committee last week on Capitol Hill in Washington. (Patrick Semansky/AP)

Rahm Emanuel is a former Chicago mayor, White House chief of staff and Democratic congressman from Illinois.

Democrats are so distraught over Senate Majority Leader Mitch McConnell’s (R-Ky.) maneuverings to cement a conservative majority on the Supreme Court that they are overlooking the enormous political opportunity right in front of them. A wave election the year ahead of national redistricting — remember 2010? — can redefine the nation’s political landscape for a decade. If Joe Biden leads the party to a landslide in two weeks, Democrats have a chance to establish a new governing Democratic majority.

For decades, Republicans deployed “God, guns and gays” to cleave suburban moderates from urban liberals, but all three issues have lost their punch. The gun lobby is in retreat, same-sex marriage is the law of the land, and the imaginary “War on Christmas” is the least of anyone’s problems — and so a muscular new coalition is forming. The Supreme Court long served as a last line of defense against GOP lawmakers determined to eviscerate the right to choose, the right to vote, equal protection under the law, and environmental and workplace protections. But rather than just continue to play defense in the courts, Democrats should soon have the votes also to go on offense in the legislative arena.

By ramming through Judge Amy Coney Barrett’s nomination just weeks before the election, the GOP might have finally won the Supreme Court. But checks and balances are a two-way street, and the power Democrats are likely to wield beginning next year might reverberate until 2030. They should be careful not to squander it.

Virginia, long a bellwether, suggests a new playbook. The voters who put Democrats in control of the statehouse last year quickly saw the results: Richmond embraced gun-safety legislation, ratified the Equal Rights Amendment, adopted broad protections for LGBTQ people, established new worker and civil rights, and passed voting rights legislation. Much of that progress is beyond the reach of a reactionary judiciary. In the same way a Democratic Congress and President Barack Obama overturned the Supreme Court’s retrograde ruling in Ledbetter v. Goodyear Tire & Rubber Co. with a new law on gender pay equity, progressives can fight back against the court with a results-oriented, court-proof agenda.

Some Democrats have called for expanding the number of justices to the Supreme Court in order to shift its ideological leaning. (Video: The Washington Post)

It’s already happening. State legislatures are writing the protections provided in Roe v. Wade into law. Absent movement from Washington, states have embraced tough renewable-energy standards — and a Democrat-controlled Congress could advance a national approach to climate change. Legislators can make sure school districts benefit from equal funding. And if you thought that Democrats’ vows to maintain coverage for those with preexisting conditions played a role in their huge midterm victories in 2018, imagine the effect at the polls if the Trump court rips insurance away from families hit by covid-19 — and a Democratic Congress speedily steps in to restore it.

Despite Chief Justice John G. Roberts Jr.’s assertion that the high court just calls “balls and strikes,” the conservative majority’s evisceration of a Voting Rights Act reauthorization that had passed the Senate, 98-0, proves that justices are, in fact, legislating from the bench. So as they hand down a stream of unpopular decisions, Democrats will have multiple opportunities to campaign for legislative checks that will solidify and grow their new metropolitan majority of urban and suburban voters.

With health care, climate change and tax reform all on their to-do list, Democrats shouldn’t waste political capital attempting a political maneuver — court-packing — that not even Franklin Roosevelt could pull off at the height of the New Deal. Rather than expand the court, Democrats should expand the playing field. With the filibuster curtailed, they will be equipped to establish a new national voting rights regime that addresses not only the legacy of bigotry in the South but also conservative efforts to disenfranchise people of color across the country.

They will have an opportunity also to expand the district and appellate courts, where much of the key case law gets made, as Sen. Christopher A. Coons (D-Del.) has proposed. And they can move to bring a new level of transparency to our politics, exposing how dark money not only influences the legislative branch but also funds junkets and exotic retreats for judges and justices as well.

The wave election of 2010 that empowered Republicans for a decade has now played itself out. The majority of Americans aren’t going to march across a bridge back to 1955. If conservative judges try to push LGBTQ people back in the closet, women back in the alley, immigrants back on boats, voters back to facing poll taxes and other barriers, and workers back into sweatshops, the consequences at the polls will be devastating for the Republicans for years to come. A preview is only a couple of weeks away.

Progressives are right to be infuriated by the way conservatives have shattered norms to seize the court. But we shouldn’t let that anger blind us to the path to a new governing majority.

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