Aaron Belkin is director of Take Back the Court and the Palm Center, as well as a professor of political science at San Francisco State University.
When I founded Take Back the Court in 2018, the fight for Supreme Court expansion was a lonely one. In the two years since, dozens of organizations, elected officials and opinion leaders have come on board. But some of the stiffest resistance has come from the legal community.
That skepticism makes sense. For good reasons, lawyers and legal professionals are socialized in the idea that courts must be as above the fray, nonpartisan and legitimate as possible. Unfortunately, today’s Supreme Court hardly lives up to the paradigm.
In 2016, when Sen. Mitch McConnell and the Republican Senate refused to consider the nomination of Judge Merrick Garland to the high court, they didn’t just steal a seat — they robbed the court itself of some of its remaining legitimacy. Last year, when they broke their own cynically contrived rule against confirming justices in an election year to confirm Justice Amy Coney Barrett, they obliterated any facade that the court is above the partisan fray.
But the assault on the court’s independence is not only coming from outside the building. As many readers of SCOTUSblog likely know, Sen. Sheldon Whitehouse examined all 73 split-decision civil cases between 2005 and 2018 in which Republican Party donors had a clear interest. The conservative majority sided with conservative donors all 73 times. In approximately half of those cases, the majority ignored, overturned, or sidestepped conservative judicial doctrine to reach a decision favored by their co-partisans. That’s not calling balls and strikes, and it’s not just conservative jurisprudence. It’s a court functioning, for all intents and purposes, as an extension of the Republican Party.
Democracy on the brink
The court’s partisanship has especially alarming implications for American democracy. Whenever I make the case for expansion, I start with the reality that our democracy is in peril. Inevitably someone asks whether that’s hyperbole. It’s not.
Democracies can’t function when only one side is allowed to govern regardless of how people vote or, worse, when only one side believes in democracy at all. True, Democrats can still eke out electoral victories if they achieve popular vote blowouts. But even then a majority of House Republicans voted to overturn the will of the people in the latest presidential election, and state Republican parties responded with an unprecedented barrage of new voter suppression laws and plans to gerrymander their way to a House majority in 2022. As this audience well knows, the court is complicit in the effort to rig the system, having eviscerated the Voting Rights Act and greenlit partisan redistricting. And it is likely to block restorative measures as well as policy solutions to urgent challenges like climate change.
The only way we can restore the court — and democracy itself — is to add seats, and the only window to act is now. That’s why I welcome this opportunity to dive into concerns I hear from well-meaning skeptics.
1. Even if Republicans broke the norms first, wouldn’t it be better for democracy if Democrats respect them?
It is wrong and dangerous to consider reversing a broken norm as an act of norm-breaking itself. Doing so would incentivize and entrench ongoing normative violations. (In game theory, this is called playing the sucker, though the point here isn’t to score points for the Democratic Party, but rather for democracy.)
As Professor Thomas Keck underscores, there’s a critical difference between constitutional hardball designed to tank democracy and hardball designed to strengthen it. Adding seats is the way we can ensure the John Lewis Voting Rights Act, D.C. statehood, and so many other reforms focused on strengthening democracy can survive.
2. Won’t Republicans just retaliate and add more seats when they are in power?
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