“Nothing is off the table,” Senate Minority Leader Charles E. Schumer (N.Y.) told fellow Senate Democrats over the weekend about what might happen if Republicans fill this seat, cementing the court’s conservative tilt.
But chatter about these changes was already happening among Democrats well before last week. There were nearly a dozen proposals floated to this end during the Democratic primary, based on a few long-standing Democratic frustrations that a minority of the country has picked the current Senate Republican majority (which then approves who sits on the Supreme Court), and the fact that recent Republican presidential wins have come through the electoral college despite popular-vote losses.
Here are the overhauls that are being talked about by some in the Democratic Party, in the order of likelihood they could happen.
Get rid of the filibuster
What it is: A procedural tool that allows one senator out of 100 to hold up legislation and requires 60 votes to overcome it.
The filibuster has eroded over the years because of changes made by both parties. The current Republican majority lowered the vote threshold to 51 votes for judicial nominees, which is how Trump got his first two Supreme Court picks approved and how he can push through this third over Democrat objections.
But the 60-vote threshold still exists for legislation, when the minority wants to employ it.
Why Democrats are talking about changing it now: It has been a tool for Democrats in recent months to stop what they saw as a bad Republican police overhaul bill and an “emaciated” coronavirus relief package.
But Democrats fear that if they win the Senate majority in November, the tables will be turned, and Senate Republicans will have power to stop their legislation.
How likely is it? Getting rid of the filibuster entirely has its prominent supporters, most recently former president Barack Obama. Democratic presidential nominee Joe Biden, a longtime member of the Senate who tends to favor its traditions, has been skeptical of doing this, although he, too, has recently been open to the idea.
But there is strong resistance from some Senate Democrats, because it would make the Senate operate the same way the majority-rule House does.
I wrote this summer about several things that could happen to give this idea traction next year if Democrats are in power. Like:
- Powerful voices in the Democratic Party continue to sound open to it. (Obama recently compared the century-old filibuster to “another Jim Crow relic.”)
- Democrats win back the Senate and feel emboldened.
- Democrats have legislation they agreed was important to pass, over Republicans’ objections, that they think it’s worth eliminating the filibuster for. Could coronavirus relief, or maybe voting rights, or even the next item on our list be that?
What it is: It’s adding more judges to a court than there are now, including the Supreme Court.
The Constitution says nothing about how many justices there must be on the Supreme Court, and over time, it has fluctuated between six and 10. Congress set the Supreme Court to be nine justices in 1869, but if a president and Congress agree, they could change the law to expand the court or shrink it.
Why Democrats are talking about changing it now: They’re frustrated about how the past two justices, Neil M. Gorsuch and Brett M. Kavanaugh, have gotten on the court: under extremely politically divisive circumstances, nominated by a president who lost the popular vote and approved by a bare majority of the Senate.
How likely is it? This would require a majority of Congress to approve and a president to sign off on it. And Biden has not been a fan of it. He sees this as a maneuver that could come back to haunt Democrats when they’re out of power. “We’ll live to rue that day,” he said during the primaries when this came up.
But what happens if Democrats gain control and start passing legislation that Republicans challenge in court, which a conservative-leaning Supreme Court knocks down? Might Biden be more inclined to then to consider this? Some on the left hope so.
The next three ideas aren’t getting as much traction as the first two, but they do have notable support among high-profile Democrats.
D.C. and Puerto Rico statehood
Congress could expand the Senate by adding states, which would add two new senators per state. The territory of Puerto Rico is one option, but what really has Democratic support is making D.C. a state. Every 2020 Democratic presidential candidate supported the idea, including Biden and vice-presidential nominee Kamala D. Harris.
This summer, the House of Representatives voted to make D.C. a state for the first time in history. But that’s dead on arrival in a Republican-controlled Senate. And if Democrats take control of the Senate but keep the filibuster intact, it would probably still struggle to pass, since the new D.C. and/or Puerto Rican senators would probably be reliable Democratic votes.
Getting rid of the electoral college
The past two Republican presidents have gotten to the White House by losing the popular vote but winning the electoral college. (Trump lost it by nearly 3 million votes.) Getting rid of the electoral college entirely is another idea that Biden was opposed to during the primaries.
But six senators who were also seeking the Democratic nomination, including Harris, said during the primaries they definitely wanted to do this. “I believe that it is hard to defend the current system in which one candidate receives 3 million votes less than his opponent but still becomes president,” Sen. Bernie Sanders (I-Vt.) said.
This would take a constitutional amendment, and it would change the very system the Founders set up to elect presidents. There’s a movement afoot to go around the Constitution by having states agree to give their electoral votes to the candidate who wins the national popular vote — regardless of who won the vote in that state. State legislatures need to change their laws for how they allot their electors to that, and a number have. This movement is 74 electoral votes short of being able to being able to command how the 270 electoral votes needed to win get allotted, so that they go to the winner of the popular vote.
It’s easy to see momentum for that idea slowing if Democrats win the White House this November, and the electoral college imbalance is suddenly out of sight and out of mind.
Term limits for Supreme Court justices
Biden opposed this during the primaries, but at least five Democratic senators who were running for president were open to it, according to a Washington Post analysis. Including Harris: “We are on the verge of a crisis of confidence in the Supreme Court,” she said. “We have to take this challenge head on, and everything is on the table to do that.”
Washington Post columnist Charles Lane argued this week that modern life expectancy is too long to justify lifetime court appointments.
But it would probably require a constitutional amendment to change this, since the Constitution says Supreme Court justices are appointed for life. Changing the Constitution is one of the hardest thing to do in U.S. politics. It would require a significant amount of buy-in from the very Republican senators trying to confirm Trump’s third nominee now.