Democrats are angry, and have every right to be. As do the people they represent.
Their opponents, the Republicans, have gamed the Supreme Court in every way possible, including “upending precedent, breaking their own rules, and stealing seats.”
Huffington Post spells out (here) some of the ways:
- In 2016, Mitch McConnell refused to give Obama’s nominee, Merrick Garland, a hearing “for nearly a year by inventing a ‘rule’ that the Senate could not consider a nominee in a presidential election year.”
- Some Republican senators “then insisted that if Hillary Clinton won,” they would block anyone she nominated, effectively shrinking the court to eight justices.
- In 2020, Senate Republicans led by McConnell violated their own “rule” and rushed a Trump nominee onto the court just days before the election.
- Rightwing advocacy groups have spent millions of dollars in “dark money” to “remake our judiciary on behalf of a distinct group of very wealthy anonymous funders,” according to a Democratic senator.
- And, while not mentioned by Huffington Post, Republicans have blockaded Democratic judicial appointments, regardless of merit.
Politics is politics, but even so, there’s a profound sense of unfairness about it. Republican presidents have now appointed 15 of the last 19 Supreme Court justices, more than their fair share, by deploying tactics universally regarded by Democrats as unprincipled and underhanded. To put that in context, the Republicans have won the popular vote only once since 1988.
But if the presidents appointing them lack a popular mandate, what’s even more problematical is the justices they’ve appointed have come from the political extreme, not the center, are very unrepresentative of the majority of the American people, and have done very unpopular things, such as:
- Prohibiting federal courts from interfering with outrageously undemocratic gerrymandering
- Overturning campaign finance laws, and allowing unlimited amounts of “dark money” into campaigns;
- Squashing efforts to regulate guns, amid an epidemic of gun violence now reaching into schools and taking childrens’ lives
- It’s widely believed they’re about to overturn abortion rights, which are supported by a large majority of the public
- Allowing Texas to enforce a new anti-abortion law that turns citizens into vigilantes and puts bounties on a still-existing constitutional right
It’s no use pretending the Supreme Court is above politics. It isn’t. And in a system based on consent of the governed, its legitimacy and citizens’ willingness to respect its rulings could be in jeopardy, if an unrepresentative court assembled by underhanded, and seen as blatantly partisan, makes one too many unpopular rulings.
The Supreme Court may not have quite reached that point yet, but it has reached the point where Democratic members of Congress are angry, and millions of Democratic voters are very angry, about how their party has been shut out of making court appointments, and feel they’re being screwed by the court’s rulings, to the point where they fear the survival of our democracy is in danger.
The Republicans may have overreached. Gone a bridge too far.
It doesn’t help that the most visible and extant architect of all this, Mitch McConnell, is an unprincipled, ruthless, Machiavellian politician who only cares about whether his side wins. Public interest be damned. At least, that’s how Democrats look at him. And make no mistake, they’re thirsting for revenge.
The upshot is that packing the court is now a very popular idea among the Democratic base. So is term limiting the current justices, to get some of them off the court. These things can be done by simple congressional majorities, if the filibuster is suspended or eliminated, which can be done by a simple Senate majority’ and quite a few Democrats, especially the progressives, want to do both.
Now back to “dark money.” The court already has a problem of being viewed as partisan. It will have a much bigger problem when the Democratic base and the general public comprehend the role that money plays in the court’s decisions. The senator who raised questions about the influence of “dark money” is Sheldon Whitehouse (D-RI), who chairs the Senate Judiciary Committee. He looked at civil cases “in which there was an evident Republican donor interest,” and found that “the donor interest win record [in those cases] was an astonishing 80-0.” Each of those 80 cases was decided 5-4, along partisan lines.
If you think there’s a problem when the public thinks the court is partisan, just wait until the public thinks the court is bought. It won’t survive that, at least not in its present form.
This brings us back to Biden’s Supreme Court report. Actually, it isn’t his report; to mollify angry members of his own party, he appointed a commission to study “Supreme Court reform,” which The Hill described as “composed of 36 members, including constitutional scholars and academics.” (Note that two of its “conservative” members resigned today for unstated reasons, see story here.)
They released a preliminary report yesterday, and a wide swath of Democrats are already bashing it, because they think it’s tilted against packing the court — something Biden has said he’s against. As The Hill reported yesterday, the commission “said there are ‘considerable’ risks to expanding the number of justices on the Supreme Court, including the potential to undermine the high court’s legitimacy.”
Those Democrats probably would reply the court is already illegitimate. Maybe not uuite yet, but at the very least, its public support is nosediving (details here). And that will only get worse if the coming court term, which is heavily laden with “explosive” cases, produces even more intensely unpopular decisions, and a lot of them.
Most people assume nothing will happen before next year’s elections, and a lot of people believe the Democrats will lose their House majority, and possibly their Senate majority, too. But what if the court’s decisions next year impact the outcome of those elections? What if the Republican justices so infuriate the country that voters not only strengthen the Democrats’ majorities, but mandate that Congress and Biden do something about the court?
The problem for the justices is they won’t know if they went too far until after it happens. The problem for us is they might not care. They should, though.
Ultimately, what happens to the court won’t be decided by a report. To a great extent, it will depend on the public reaction to the court’s decisions between now and the next elections. The justices would be wise to tread carefully, and decide cases judiciously.
Politics is not about fairness. For the first time since Roosevelt we have a Conservative court and Democrats think this is terribly unfair. Well what goes around comes around. Every point made here is something Congress can act on by passing laws a President of the same party will likely sign into law. [Edited comment.]
Fairness can’t be enforced in politics, but a perception of unfairness poisons the political atmosphere, so it’s in the public’s interest for the parties to work out their differences within a set of ground rules, and give everybody a voice. Our politics have become too combative and adversarial, and that’s not good for the country or its citizens. The problem with this court isn’t that it’s conservative, but that it’s out of step with public opinion, and is seen as an opponent instead of a protector by the majority of the public.