Democrats Will Fail Their Voters If the Court Isn’t Packed in 2021


Photo courtesy of Wake Forest University School of Law via Flickr.

Andrew Kelly, Staff member

Rest in peace Supreme Court Justice Ruth Bader Ginsburg, a tireless advocate for the rights of women, people of all races and ethnicities, the LGBTQ community and the economically disadvantaged. No matter which party fills her seat, nor when, the U.S. will have lost a shining beacon of moral governance. Ginsburg will always be a role model for women and girls who aspire to practice law across the country.

I would have been happy to write a piece lionizing Justice Ginsburg’s legacy, were Republican Senate Majority Leader Mitch McConnell and President Donald Trump not promising to fill Ginsburg’s empty seat with federal judge Amy Coney Barrett, who embodies the values and ethics, or lack thereof, of the current administration.

Such a contested – and unprecedented – appointment, coming mere weeks away from a presidential election, would give conservatives a 6-3 majority on the Supreme Court. This means conservatives will not only set legal precedent for the country for decades to come, but give them a “sky’s the limit” chance to repeal anything (and I mean anything) they wish to repeal, provided a litigant can provide them with a case for it.

Stripping key portions of Obamacare, including protections for pre-existing conditions? Doable. Reversing Obergefell v Hodges, the ruling that legalized gay marriage nationwide, or Lawrence v Texas, the law that struck down state statues criminalizing consensual sexual relations between members of the same gender? Totally within the realm of possibility. Stacking the Supreme Court with conservative justices will also, finally, put the highest court within striking distance of reversing Roe v Wade, the ruling that made abortion legal nationwide.

To add insult to an already grievous injury, McConnell and the GOP are desperate to ram a new conservative Supreme Court Justice through Congress, even if it means doing it in a “lame duck” session where the American people have elected Joe Biden and a Democratic Senate and Congress.

This directly contradicts the precedent, when McConnell denied President Barack Obama the opportunity to fill the supreme Court seat left vacant by the sudden death of conservative Justice Antonin Scalia.

At the time McConnell argued that, in an election year, voters should have the right to pick their president who would then choose the Supreme Court justice, a rationale in direct conflict with the reasoning McConnell is giving now as he seeks to rush the process at lightning speed.

This all may be terrible, you might ask, but what can anyone do about it?

Although the Constitution mandates that there is a Supreme Court, it does not mandate how many judges are on it. In the face of obstruction from the Democratic Party, Abraham Lincoln increased the number of Supreme Court justices to 11, and then down to 10. President Ulysses S. Grant then reduced the court’s number to nine justices, where it sits today.

If Mitch McConnell and the Republican-led U.S. Senate try to force through a judicial nominee – one who embodies the policies of an administration that has been wildly unpopular – during a period that is usually committed to ensuring the peaceful transition of power, Joe Biden and a Democratic Senate in 2021 could respond by expanding the Supreme Court. Several new judges could be added to counteract the GOP’s action that has no basis in ethical governing.

Some centrists may argue that this is a bad idea, a terrible thing for democracy, and represents the end of our Republic as we know it. Indeed, it was none other than former First Lady Michelle Obama who implored others to “go high when they go low.” But in response, I’d say: We’ve tried that. This strategy has resulted in 200,000 deaths from a pandemic so far with 7 million more people having contracted the disease and the lifelong respiratory issues that it causes.

Its ended with political dissidents and journalists, specifically those protesting and covering police brutality against African-Americans, being beaten, tear gassed and shot with rubber bullets. Its ended with a president who’s trying to use a global pandemic, and the disruptions it has caused, to stay in office even if voters deny him the opportunity to do so.

Its ended with the government pushing against the rights of Transgender and Non-Binary people. Its ended with college students being shepherded back into dorm rooms that might as well be germ incubators because universities still need to turn a profit.

No disrespect to First Lady Obama, but the whole “going high” thing doesn’t really seem to be working out all that well.

Assuming Mr. Biden is elected president with a Democratic trifecta controlling both houses of Congress, he and the Democratic Party will have a crossroads. They can act in the interests of the majorities of women, Black Americans, disabled people, youth and LGBTQ people who will no doubt be responsible for vaulting him to victory, if he manages to attain it. They can abolish the filibuster and appoint multiple new justices to the nation’s highest court so that it represents the demographics of our nation’s constituencies today.

Or they can listen to the words of the elite political commentator class and D.C. politicos who have long been sowing fear about the idea of any form of large-scale reform in our government and institutions. In doing so, Biden would be throwing his trusting constituents under the bus. It would betray voters who trusted their rights would be protected against the blatant subversion of democracy by the GOP. The choice is ultimately theirs – I hope they choose wisely.

This piece originally aired in the Benicia Herald, and was modified and edited to be published in the DVC Inquirer.