Let’s Think About Court-Packing : Democracy Journal

Ian Millhiser has not blinked from pointing out that the Supreme Court has been an enemy of democracy throughout our history - with a brief window of 1954 - 1968.  It is at one of its lowest points now. - gwc
Let’s Think About Court-Packing : Democracy Journal: Yes, it’s a dangerous tactic. But so is permitting a reality in which Republicans win rigged elections and the Supreme Court winks.
by Ian Millhiser // Center for American Progress

Just two years ago, this would have been an extraordinarily radical essay.

Its premise is that court-packing—increasing the number of seats on the Supreme Court to change its ideological makeup—is, in certain limited circumstances, justified. And it is not unlikely that those circumstances will arise soon.

Long seen as an unacceptable tactic, court-packing is now increasingly viewed as the least-bad option by an array of scholars and activists fearful that the Supreme Court has become a wholly owned subsidiary of the Republican Party.

The Roberts Court isn’t just a deeply conservative body; it is a body at war with democracy itself. Republicans on the Supreme Court have hobbled a key provision of the Voting Rights Act, and unleashed a torrent of money upon our elections. They brushed off voter suppression laws, and turned a blind eye to partisan gerrymandering. One recent decision held that voting rights plaintiffs who allege that a law was enacted with racist intent must overcome a burden of proof so high that it may now be simply impossible to win such cases in the future.

All four of the Republican-appointed justices who sat on the Court in 2016 voted to reinstate the most aggressive voter suppression law in the country—a North Carolina law that, according to a federal appeals court, targeted “African Americans with almost surgical precision.” If Justice Antonin Scalia were still alive when this case reached the Court, one of the worst voter suppression laws since Jim Crow would have taken effect during the already problematic 2016 election.

And then there’s the Supreme Court’s newest member, Brett Kavanaugh. The fifth Republican vote belongs to a man who blamed credible allegations that he committed sexual assault on a shadowy conspiracy undertaken to secure “revenge on behalf of the Clintons.” Kavanaugh has implicitly vowed revenge against the Democratic Party, telling his political opponents that “What goes around comes around.” He now holds the deciding vote on an array of upcoming voting rights cases.

Kavanaugh, moreover, joins a Court led by a man who’s long fantasized about dismantling America’s most important voting rights law. For years, stretching back to his time as a Reagan Administration lawyer in the early 1980s, Chief Justice John Roberts believed that the entire Voting Rights Act—including the parts left untouched in his 2013 decision in Shelby County v. Holder—should be neutered. Kavanaugh will likely provide Roberts with the fifth vote he needs to eliminate meaningful checks on racial voter discrimination, freeing red states to enact laws that shut Democrats of color out of the polls.

Likewise, these four conservative justices believe that state ballot initiatives giving independent redistricting commissions the power to draw legislative lines are unconstitutional. Kavanaugh will likely be the fifth vote for this proposition as well, eliminating one of the most effective ways we have of fighting gerrymandering.

This new Supreme Court could, in effect, usher in an era in which competitive elections essentially cease to exist in the United States—at least at the federal level. Democrats would lose any meaningful ability to compete for the presidency or for control of Congress. The United States would, of course, still hold elections, and many Democrats would serve as minority players, but the question of who ultimately rules in this country would be predetermined by a web of gerrymanders and voter suppression laws passed by Congress or state lawmakers and upheld and validated by the Supreme Court.

As the Court once recognized in its 1938 decision in United States v. Carolene Products, the judiciary has an obligation to intervene when lawmakers restrict “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or when those lawmakers target the electoral process itself. When these legislators attempt to entrench their own rule, the courts have an obligation to roll back those laws and restore the voters’ power to choose their own leaders.

This same principle works in reverse as well. That is, when a conservative-dominated Supreme Court entrenches its own rule by handing down decisions on matters like voting rights that all but guarantee that future justices will be chosen by Republicans, Congress has a duty to intervene and ensure that elections will remain competitive. If the Supreme Court’s current majority is committed to one-party rule, then Congress must create a new majority on the Supreme Court that will return power to the voters.