Four Democrats have introduced a bill that would add four seats to the U.S. Supreme Court. If the bill passes, and if President Joe Biden successfully makes all four appointments, that would give Democrats a 7-6 edge in the nation’s highest court — up from the 6-3 conservative supermajority today.
Those are big ifs. Biden is lukewarm about expanding the Court, and Nancy Pelosi says she won’t schedule a vote on it. Still, Republicans are fuming. GOP Senate leader Mitch McConnell accused Democrats of conspiring to “pack the Court, destroy its legitimacy, and guarantee the rulings liberals want.”
McConnell is projecting. If you want to know what a packed court looks like, look at the one he gave us.
Thanks to McConnell’s efforts, one-third of the current Court’s members were appointed by Donald Trump, a twice-impeached president who twice lost the popular vote.
When a Supreme Court seat opened up with nearly a year left of President Barack Obama’s second term, McConnell famously refused to hold even a single hearing for Obama’s nominee, Merrick Garland, before the election. When Donald Trump lost the popular vote but eked out an Electoral College victory, McConnell helped Trump install Neil Gorsuch instead.
Was that what voters wanted? It didn’t matter to McConnell, who abandoned the standard entirely last year when liberal justice Ruth Bader Ginsburg passed away with just weeks left in President Trump’s term.
By then the country was deep into a mass casualty pandemic and a devastating recession. Yet McConnell tabled all public health and pandemic relief measures to force through a breakneck vote on right-wing justice Amy Coney Barrett — by which time millions of early voters had already cast ballots.
Trump lost the election, called a violent mob down on the Capitol, and got impeached again. But Barrett’s lifetime seat on the court is secure.
In between these, McConnell forced through the confirmation of Brett Kavanagh, a right-wing justice who’d been accused of sexual assault. And to bag all three seats, McConnell eliminated the filibuster — which he now says would create a “scorched earth” Senate if Democrats do it — for judicial confirmations.
By any reasonable reading, McConnell cares little about norms, justice, or voters. Indeed, the Supreme Court may be where the most extreme version of Republicans’ built-in, antidemocratic advantages find expression.
Republicans have won the popular vote for president just once in the last 30 years, but the Electoral College gave us Republican presidents for 12 of those years. The GOP hasn’t represented a majority of Americans in the Senate since 1998, but thanks to the overweighting of small, conservative states, they’ve controlled the body for more than half the years since.
These factors, combined with McConnell’s own ruthlessness, mean that five of the six conservative seats on the Court were filled by Republicans who lost the popular vote — and confirmed by Republican Senate “majorities” representing a minority of Americans.
That’s given Republicans a near-permanent — and expanding — veto on decades of progressive legislation. In the last few years, the Court’s gerrymandered conservative majority has gutted the Voting Rights Act, opened the floodgates to corporate money in politics, and sided with business interests over consumers and employees in nearly 100 percent of cases.
And more than once, the Court has flirted with dismantling the Affordable Care Act and stripping away health coverage from tens of millions of Americans. Imagine how much worse the pandemic would be if they’d succeeded.
This is what a packed court looks like. Republicans now pretending to care about the nine-member court’s “neutrality” want you to think the court they’ve painstakingly packed themselves is “neutral,” even as it attacks your voting rights, working conditions, and health insurance.
Want more evidence? Several Republican senators were planning to reduce the court’s number to eight if Hillary Clinton won in 2016. Meanwhile, Republicans in Georgia and Arizona expanded their state supreme courts with openings for their GOP governors to pack.
Nonpartisan reformers suggest a constitutional amendment that would set Supreme Court term limits and let each new president appoint two new justices. That would dial down partisan tensions while allowing more democracy on the Court. But two-thirds of Congress — the necessary threshold for amendments — is unlikely to support it.
As an alternative, Democrats are seeking a modest, one-vote majority on the Court to reflect the majorities they’ve been awarded by voters — and to protect decades of settled law. That’s plenty reasonable.