This is why we must reject the fake moderation of those who pretend that both sides in this fight are equally partisan, equally stubborn and equally at fault. No. It’s the American Right that has been willing to abuse power again and again to achieve its goal of imposing a radical approach to jurisprudence that would undercut democracy itself.
There is no liberal analogue to the Shelby County and Citizens United decisions, which changed the rules of the game in anti-democratic ways; no liberal analogue to the Merrick Garland blockade; and no liberal analogue to the lawlessness of Bush v. Gore.
So let’s understand how the words “court-packing” should be used. The real court-packers are McConnell, Trump and conservatives who draw inspiration from what some of them call a “Constitution in exile.”
They are expressing nostalgia for the glory days of pre-New Deal judging that gave us separate-but-equal rulings on civil rights and eviscerated the ability of the democratically elected branches of government to protect workers, consumers and the environment.
If the court-packers succeed in forcing another conservative onto the court regardless of the outcome of the 2020 election, enlarging the court would be a democratic necessity, not payback.
It would be the only way to fight efforts to wreck unions, gut voting rights, tie the hands of regulators and empower plutocrats by voiding laws limiting money’s role in politics.
Oh, wait, that list enumerates what conservatives have already done with just five votes on the court. Imagine the damage they could do with a sixth.
Former vice president Joe Biden is right to focus this battle on the Affordable Care Act and thus the future of health insurance for at least 20 million Americans, along with preexisting conditions protections for many more.
If you want to know what the misnamed “conservative” legal radicals have in store for us, go no further than their continuing litigation against Obamacare. The right already lost once before the Supreme Court. It lost the fight to repeal the ACA in Congress. It lost it again when the voters used the 2018 midterm elections to reject politicians who wanted to cast the health-care law aside.
But the let-them-use-emergency-rooms conservatives refused to accept the outcome of democratic argument, deliberation — and voting. They are now trying to use the courts to void democracy’s writ and flout the wishes of the electorate. This is our future if we refuse to see conservative court-packing and conservative judicial activism for what they are.
Ginsburg’s powerful dissents on behalf of democracy should be on our minds as we resist the Trump-McConnell juggernaut. When five conservative justices undermined the Voting Rights Act in the 2013 Shelby County decision, she wrote that “a governing political coalition has an incentive to prevent changes in the existing balance of voting power.”
Yes, conservatives are trying to lock in minority rule — through the courts, through restrictions on voting and through their temporary majority in the structurally undemocratic Senate — to protect themselves against the will of future majorities in an increasingly diverse country.
Ginsburg also wrote a remarkable dissent in Bush v. Gore, taking five conservative justices to task for ignoring their own long-standing deference to states’ rights to stop recounts in Florida in the 2000 election between George W. Bush and Al Gore.
We should not forget how willing the right has been to use all the instruments at its disposal to perpetuate its hold on power. Five conservative justices effectively made Bush president, and the loser of the popular vote went on to appoint two conservatives to the court. Now, Trump, the loser of the popular vote in 2016, claims a mandate to appoint his third justice.
If Trump succeeds with this pre-election gambit, a majority of the court — a court with lifetime appointees from whose decisions there is little recourse — will have been named by presidents who first reached office without winning the most votes.
And we claim to be a beacon of democracy?
Yes, the whole GOP — not just McConnell — must be challenged for double standards and double talking. Maybe a handful of Senate Republicans will understand that barreling forward will further undercut the already tenuous legitimacy of the court and the Senate alike.
But let’s be clear about the terms of the contest: Only one side is standing up for democracy.