The Big Choice about the Supreme Court that Democrats Will Face

http://prospect.org/article/big-choice-about-supreme-court-democrats-will-face

The Big Choice about the Supreme Court that Democrats Will Face
Paul Starr
September 13, 2018
When Democrats next hold Congress and the presidency, they could see their entire agenda nullified by the Court’s right-wing majority.


With Brett Kavanaugh’s confirmation nearly certain—and perhaps other right-wing justices to follow in coming years—Democrats are going to face a fundamental choice about the Supreme Court the next time they control the presidency and Congress and try to carry out substantial reforms.

When that moment comes in 2021, 2025, or later, the Court will likely have reversed many long-standing liberal precedents and policies and be poised to strike down new progressive initiatives. Many people assume there is nothing Democrats could do that in that circumstance. But instead of simply acceding to the Court’s dictates, they could take a fateful step that the Constitution leaves open: increasing the size of the Court and appointing additional justices to shift the balance.

This was, of course, what Franklin D. Roosevelt tried to do after being re-elected in 1936, when he faced a Court that had overturned major New Deal programs. FDR didn’t invent the idea of changing the size of the Court to overcome judicial opposition. Congress changed the number of justices repeatedly in the nineteenth century. In 1863 congressional Republicans added a tenth seat to give Lincoln an additional appointment; after Lincoln’s assassination, they reduced the number of justices to seven to deny any nominations to Lincoln’s successor, Andrew Johnson. Then they re-enlarged the Court to nine in 1869 when Ulysses Grant became president.

FDR’s “court-packing” proposal is usually remembered as a failure because Congress rejected it. But, in fact, both the Republicans of the 1860s and FDR succeeded in deterring the Court from blocking their reforms. In FDR’s case, one conservative justice changed sides in 1937 and voted to uphold the National Labor Relations Act and a state minimum-wage law. A “switch in time saved nine.”

Another such effort to shift the Court would be unthinkable if both parties continued to respect the norms for court nominations that prevailed in the mid- and late 20th century. But Republicans have already violated those norms by denying a hearing or a vote to President Obama’s nominee Merrick Garland and effectively stealing a seat. They are also pushing through Kavanaugh’s confirmation on a partisan basis, despite the fact that in this case the president is under investigation for obstruction of justice and his motivation for choosing Kavanaugh seems directly related to the judge’s views about executive power and privilege. If there were ever a moment for putting aside a president’s nominee, it wasn’t in Garland’s case, it’s in Kavanaugh’s.

The Republicans are playing what Mark Tushnet calls “constitutional hardball,” leaving Democrats little choice but to respond in kind. Some legal scholars and observers recoil at the idea of playing tit-for-tat. But Tushnet argues Democrats would be justified in adding two additional seats to reverse what Republicans did with Garland. To those who say such a measure would violate political norms, Tushnet responds that it would, in effect, be an effort to establish a new norm:“You can't steal a Supreme Court seat and expect to get away with it.”

Unless Democrats are going to roll over and give up any hope of carrying out their policies, they are going to need to play constitutional hardball to reverse the illegitimate gains Republicans have made in controlling the Court.

Does that make you nervous? It should.

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http://prospect.org/article/big-choice-about-supreme-court-democrats-will-face