Pack the Fucking Court

Photo: J. Scott Applewhite (AP)

The conservative majority on the Supreme Court, which includes a man accused of sexual assault, another accused of sexual harassment, and another who was put there by the anti-democratic leader of one of the most anti-democratic legislative bodies in the (ostensibly) democratic world, has officially endorsed white minority rule. So here’s another reminder that in order to have a more just society and representative government, the makeup of the Supreme Court must be radically altered in such a way that it barely resembles the shoddy system we have now.

The Supreme Court, contrary to popular belief, has almost always been a deeply political institution; but this has become ever-more apparent as the goals and methods of the Republican Party have become more authoritarian and craven under the leadership of Mitch McConnell, while Senate Democrats dream up new ways to avoid actually proposing that we do anything about this state of affairs.

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That just can’t happen anymore. Thursday showed why, as the Supreme Court essentially gave a pass to any state legislature which wants to rig its districts in such a way that power becomes entrenched in the hands of the party that controls it in the 2020 elections. The ramifications of this decision are going to be felt for decades to come all over the country, as the GOP continues its march toward a world where it’s completely immune to any sort of threat to its power. (The justices also blocked the Trump administration’s attempt to rig the Census in its favor, but even that was relatively small comfort, as the court essentially said that the government had simply not lied convincingly enough about its motives to have earned a pass on the question.)

It is simply beyond question that the court’s conservative majority has become a hyper-partisan bloc intent on using its power to indefinitely entrench hard-right rule over the country, even at the expense of basic democratic principles. Clearly, something needs to be done.

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It’s not as if there aren’t already proposals out there to fix the court. The advocacy group Fix the Court has proposed 18-year term limits for Supreme Court appointments since 2015, prior to the death of Antonin Scalia and everything that event set into motion. This month, the organization released a poll showing that 77 percent of likely voters supported restrictions on court tenure such as a retirement age of years of service cap. The poll also showed that 65 percent of respondents thought the justices “do bring a political bias when they consider cases.” Because they do!

Aside from term limits, there are multiple ways to go about providing a necessary fix to this problem, some of them better than others. Several candidates, including Elizabeth Warren, have proposed packing the courts to restore some sense of balance. This failed when Franklin Delano Roosevelt tried it, but it’s been 80 years since then, and the idea looks better with every passing day that Brett Kavanaugh sits on the court. Pete Buttigieg, on the other hand, has proposed remaking the Supreme Court into a process resembling something like commercial arbitration, which is a horrible idea but still better than giving nine people lifetime appointments to a body that can unilaterally kill laws.

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Either way, it’s high time for Democrats to stop pretending like this problem will fix itself. From this point forward, what the candidates propose to do about the courts should become a primary feature of the 2020 debates—not because your average voter is going to stake their choice on who has the best proposal to remake the Supreme Court, of course, but because these debates are a rare opportunity for the opposition party to put these issues in front of a national audience. The more something like court reform is discussed and explained with regards to its impact on what the people standing on that stage actually want to do if they become president, the more prominent it will become in the country’s political imagination.

Put another way: Did you know anyone talking about Medicare for All in 2014?

If we actually want good things—voting rights, civil rights, healthcare, higher education without soul-crushing debt, and so on—we have to be prepared to remove the obstacles to making them a reality. Making the Supreme Court into something fairer than how it exists today is the first step towards doing that.

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