Before the ink had dried on Justice Ruth Bader Ginsburg’s death certificate, President Donald Trump announced that he would nominate her successor. In a breathtaking display of hypocrisy, Republicans, led by Senate Majority Leader Mitch McConnell, united around the need to confirm a new justice only a few weeks before the upcoming presidential election. These same Republicans refused to consider President Obama’s Supreme Court nominee Merrick Garland, who was picked to fill the recently-departed Justice Antonin Scalia’s seat back in 2016 because of the impending presidential contest.
Only two GOP Senators have indicated that they will defect from their party and not support a rushed candidate for the Supreme Court, which is not enough to prevent the Federalist Society’s darling, Judge Amy Coney Barrett, from being confirmed right before the election. Allowing Trump the opportunity to successfully seat a third justice in a single term in office, effectively cementing a strong conservative majority on the Court for generations to come, would hand the embattled incumbent a key victory that will undoubtedly satisfy Evangelicals and could energize undecided voters.
Aside from some minor procedural tools at their disposal, Democrats will be otherwise helpless to prevent this drastic ideological shift on the nation’s highest court. Given this stark reality, it makes sense to think about how the Democratic Party might counter the GOP’s craven move to disrespect Justice Ginsburg’s dying wish, that she not be replaced before the presidential election occurs. One powerful weapon the Democrats might wield if they are able to retake the Senate in November is to expand the size of the Court.
Importantly, you won’t find the number of justices on the Supreme Court anywhere in the Constitution. Congress decides the composition of the Court, and the number of sitting justices has changed several times throughout American history. As recently as 2016, the Supreme Court had only 8 justices on the bench after Justice Scalia’s untimely demise because Republicans blocked President Obama’s effort to replace him. So the idea that the number of justices is set in stone is belied by the United States’ own (recent) history.
The main argument suggested here as to why Democrats would be wise to expand the Court should they find themselves with a majority in the Senate relates to what we in political science call “conflicting time horizons.” Several key issues that the Supreme Court is likely (or even guaranteed) to face after the 2020 election have temporal dimensions that make their resolution significant enough to warrant expanding the Court. These issues are climate change, abortion, and healthcare.
The climate doesn’t care about political cycles, but it is affected by them. With a 6–3 conservative majority, the Supreme Court could not only facilitate further weakening of environmental regulations, but it could throw a wrench in the United States’ effort to solve the climate crisis by overturning Massachusetts v. EPA, which clarified the Environmental Protection Agency’s authority to regulate greenhouse gas emissions. Given that a 2018 IPCC report found that humanity only has a decade left to limit the global temperature rise to 1.5C (the goal of the Paris Climate Agreement), time is a precious resource we cannot squander if we want to save the planet.
Abortion has been a hot button issue in American politics for decades, but the security of a woman’s right to choose is now under serious threat. Judge Barrett is a devout Catholic whose nomination has been celebrated by anti-choice groups, raising the specter that Roe v. Wade could be overturned. The war against abortion is based on an intellectually dishonest goal- ending abortion. Research shows that banning abortion does not reduce the practice. Rather, it increases the likelihood that women, especially those from low-income and marginalized groups, will seek unsafe methods of terminating pregnancies. The point is that women can’t wait to make life-changing decisions about family planning; they need the stability offered by their inalienable freedom to choose their own destiny. Judge Barrett’s nomination immediately puts this freedom in jeopardy.
Healthcare is another basic right that the United States has struggled to provide its citizens until President Obama orchestrated the passage of the largest piece of social legislation since the New Deal- the Affordable Care Act (ACA). Unlike the other two issues mentioned above, the fate of healthcare in this country is already scheduled to be discussed by the Supreme Court in its next term. At stake is a popular law that has succeeded, however imperfectly, in expanding healthcare coverage to millions of Americans. A conservative Court could easily undo the progress made by the ACA, imperiling lives and further diminishing the United States’ status among developed countries.
Democrats should pay no mind to hand-wringing and pearl-clutching about the status of political norms surrounding the Supreme Court if they claim victory in November. Republicans have already demonstrated in word and deed that norms, tradition, and even dying wishes mean nothing in the game of politics. While the exact contours of Court expansion are up for debate (add 4 more justices? 6?), it is the most appropriate course of action the Democrats can take to counter GOP malevolence and connivance. Fortunately, we still have time to save our democracy, brittle though it may be.