McConnell got his reactionary Supreme Court by playing dirty pool.
You will recall that he block Obama’s nominee on the excuse that the American people “should have a voice,” therefore “this vacancy should not be filled until we have a new president.” But when Ruth Bader Ginsburg died 6 weeks before an election the incumbent Republican president lost, he did an about-face and rammed through Trump’s nominee.
This was hypocritical, cynical, and dishonest in the extreme. To many Democrats, it calls for retaliation, but that’s not a good reason to pack the court. This is:
“The confirmation of Amy Coney Barrett did more than install a supermajority of conservatives in the court … this is a court far more conservative than the nation … that owes its composition to the triumph of anti-democratic processes, in which a majority of its members were nominated by a president who lost the popular vote and/or were confirmed by a bloc of senators elected by a minority of voters.”
Unrepresentative, and not just undemocratically selected, but selected by means that do violence to the very notion of democracy and representative government.
It is a court that, by a 5-4 vote, refused to intervene against a state legislature that made its citizens legal vigilantes, encouraging them to sue complete strangers and offering bounties to do so, to prevent other citizens from exercising a constitutional right. What kind of court allows that?
One this country can’t tolerate.
The above was written by Lawrence Douglas, a law professor at Amherst, who favors court-packing but with a twist: Instead of the usual suggestion to expand the court from 9 to 13 justices, which would give the 3 liberal justices plus 4 new Biden appointees a 7-6 liberal majority, he suggests expanding it to 11 justices, so that the conservatives “would continue to enjoy a 6-5 majority, but with Justice Roberts, a stalwart institutionalist, serving as the swing vote.”
His rationale is this would “make the court more legitimate, not less,” by defanging the argument that it’s nothing more than a partisan power grab. (Which, of course, is what McConnell’s maneuvering was.)
In going this route, Douglas is trying to steer a middle course through a political minefield. He disavows FDR’s court-packing scheme, never implemented, in these terms:
“In 1937, Franklin Roosevelt, frustrated by a reactionary supreme court that resisted his New Deal initiatives, proposed expanding the supreme court’s bench to 15. Congress correctly rejected that court-packing plan as an attempt to manipulate the court to generate specific outcomes.”
What actually happened is the threat alone brought the justices around and stopped their obstructionism. Nobody believes that will work this time. But by limiting the court-packing to 2 seats, and allowing conservatives to retain a 6-5 majority, Prof. Douglas hopes it won’t be seen as manipulating the court to get preordained outcomes in specific cases. Just in practical terms, that would open a real tit-for-tat can of worms. But such restraint won’t persuade the people who need to be persuaded, because it’s still manipulating the court to change outcomes. Specifically, the outcome in Roe v. Wade.
Still, the situation cries out for a remedy. Or does it? Maybe everybody should just calm down and wait to see what the court actually does. It’s a very good bet the conservative justices, including those appointed by Trump, think more judicially than politically. After all, they didn’t do his bidding on the election. While their refusal to block the Texas vigilante law, by a vote along strict partisan lines, is upsetting to many, to those who understand how our legal system works, it can be explained on the basis that until someone sues someone else, there’s no actual case to decide. If given a case they upheld such a law, well, I can’t see a court doing that.
Why? Because I wouldn’t want to be the justice who turns state courts into instruments of mob rule. I’d be afraid of the mobs. I suspect maybe they would be, too.
Related article: Two other writers with strong legal credentials, one a colleague of Prof. Douglas, slammed the Supreme Court’s actions in the Texas case far harder than he does in this article. They argued that, “in its haste to gut Roe v. Wade,” the majority sent “an unmistakable signal that reform is needed to preserve the court’s legitimacy.”