Inside the Democrats’ Supreme Court Strategy War Room

Situation Briefing:

After the death of distinguished Supreme Court Justice Ruth Bader Ginsburg, just the second woman to sit on the nation’s highest court, the frenzy over the nomination process and the future of the Court has reached fever pitch levels. Senate Republicans have steamrolled through the confirmation process for Judge Amy Coney Barrett even as GOP committee members have tested positive for COVID-19 (Thom Thillis & Mike Lee). Lee, who contracted coronavirus 11 days before the hearings started, participated in person and spoke unmasked, even without a negative test. 

The nomination of Judge Barrett, of course, flagrantly violates the Republican platform just four years ago with the nomination of Merrick Garland. Then, Mitch McConnell refused to hold hearings under the bogus justification that Supreme Court nominations should not be heard in an election year. 

Given the stakes, it is no surprise Republicans are fiercely working to vote on Judge Barrett as soon as possible. With another young Federalist Society-approved justice on the court, Trump’s third in as many years, the court would be a conservative bulwark for at least the next two or three decades. Coupled with the skewed representation of the Senate towards white and rural states, two foundational institutions of America are structurally unrepresentative of the nation and functionally increase the entrenched power of the nation’s white citizens at the expense of its minorities. 

To be clear, substantive reforms to a problem that has existed since the founding of the country would require enormous changes to the structure and practices of the entire judiciary. But clearly, the status quo is deeply flawed and enraging to millions on both ends of the political spectrum. Let’s analyze some proposals that address different aspects of the issue. 

The Safe Play:

First off, Democrats could take a case-by-case approach without making structural changes. As many have learned in civics class, the judicial branch lacks the power to enforce their decisions. As a result, the executive branch can, and has, simply ignored decisions handed down by the Court. A famous example is President Andrew Jackson refusing to enforce Worcester v Georgia, and the urban legend of him remarking, “[Chief Justice] Marshall has made his decision, now let him enforce it.” 

There is precedent for such a political move. President Abraham Lincoln fought bitterly with the then-pro-slavery Supreme Court, ignored the Dred Scott decision when banning slavery in federal territories, and ignored the Court again when it ruled against his suspension of habeus corpus

But we do not have to look so far back to the 18th President to find precedent; President Trump has ignored the Supreme Court multiple times in his first three years in office. Earlier this year, the Trump Administration refused to accept DACA applications after the Supreme Court ruled the program was ended unconstitutionally in October 2019. The Interior Department also moved ahead with a regulatory move to relax protection of migratory birds after the Supreme Court blocked the proposed rule. 

This wait-and-see approach would allow Democrats to force the Supreme Court to make a major decision, say striking down the entirety of the Affordable Care Act or overturning Roe v Wade. Public opinion would likely turn decisively against the Supreme Court and allow Democrats to check an unpopular decision, such as by codifying the right to reproductive freedom. 

This strategy, however, would likely only be a single-use move. Many are calling for more structural reforms to improve the institutional purpose and power of the Supreme Court and judiciary writ large. As a result, Democrats are pushing threats to expand the size of the Supreme Court should they win control of the White House and Senate. Joe Biden has been noncommittal on the issue, but would face loud calls to take action if Republicans ram through a confirmation either before Election Day or during a lame duck session. 

Expand the Court:

There is apprehension about responding in this way if Democrats take control of government. A key question is how many seats would be added. There have been a litany of proposals from liberal think tanks and publications, but it is important to remember that Democrats would need to add four seats in order to gain a majority if Judge Barrett is confirmed. 

Furthermore, many are worried Republicans would simply add more seats if they regain power and turn the court into an instrument of the executive and legislative branches. If Democrats add less than four seats, they would not be able to expect favorable outcomes for many of their key policy initiatives. 

Adding a few seats will certainly exact the political retribution on Republicans that liberals have been chomping at the bit for, and vengeance seems necessary to many Democrats enraged by Republicans essentially stealing a seat from Merrick Garland. But it is unclear what broader purpose adding seats solves, if Republicans will be emboldened to do the same once they retake power.

One structural issue the last three confirmation battles have demonstrated is that the confirmation process is too polarized. Given the small size of the Supreme Court, a single vacancy can fundamentally shift the direction of the Court for decades. Consequently, any justice’s death or retirement poses a seemingly existential threat for the party not in power. 

Restructure the Court:

Restructuring the Supreme Court to function like the courts of appeal is a potential solution to this problem. The federal circuit court system lies one grade below the Supreme Court and is organized into 13 courts of appeal covering different jurisdictions around the country. Each of the 13 courts has between 6 and 29 members. However, each case is initially heard only by a three judge panel randomly selected from the overall pool. 

Adding a dozen more members would increase the size of the Supreme Court to 21 justices. Consequently, the death or retirement of any single justice would no longer commence a political deathmatch. Each case could be heard by a randomly selected panel of 5 justices. This would greatly depoliticize the court as the ideological tilt of the panel would be left to fate, instead of the party that controls the Senate. 

Furthermore, if a majority of the justices agree, the Court could hear a particularly important or complex case en banc. An en banc case is one heard before all the judges of the court, rather than a small panel. While a case argued in front of 21 justices might be too unwieldy, an en banc hearing in front of a randomly selected panel of 11 justices (like the 9th Circuit) would be a remedy. 

5-justice panels would also increase the number of cases the Supreme Court hears every year. Currently, the Supreme Court only grants about one percent of applications because it only has one panel of nine justices. As a result, the courts of appeal (of which President Trump has filled almost a third of current judges) are usually the final arbiter on the vast majority of federal cases. Increasing the number of panels of the Supreme Court would alleviate the hijacking of the appeals court system by the GOP. 

This solution is preferable to another popular initiative to depoliticize the Supreme Court by instituting term limits because it would not require a constitutional amendment. It is widely thought the Constitution necessitates lifetime appointments for Supreme Court justices, so adding term limits would likely require an amendment that would be almost impossible to pass. On the other hand, adding justices and switching to a Circuit Court-style case procedure would only require an act of Congress.

Democrats could incentivize Republicans to support such a bill by giving them an offer they can’t refuse. Should Chuck Schumer be Senate Majority Leader in 2021, he should offer Mitch McConnell the following choice: either support a court expansion of 8 liberal and 4 conservative justices, or obstruct the process and watch as Democrats add a dozen progressive justices. 

The former would still have a 11-10 liberal majority on the overall court (assuming Judge Barrett is confirmed). However, conservatives would still have a majority 45 percent of the time on any given case heard in front of a random 5-justice panel. Progressives on the Court would be able to protect against an overly conservative decision by agreeing to hear a case en banc, though. This proposal would also have a moderating effect on the Supreme Court, as justices would be incentivized to appeal to as many judges as possible in order to avoid their decisions being heard en banc and overturned. 

Make the Court Less Supreme:

Instead of simply restructuring the Supreme Court, many argue the root problem stems with its supreme power. The ultimate issue is not that Republicans are stopping at nothing to stuff the judiciary in order to hamstring majority-supported policies, but that the judiciary has the power to do so in the first place. 

The fact that an unelected body of nine historically white men has the extraordinary power to strike down almost any law as unconstitutional is untenable in a democracy, some argue. As Ryan Cooper writes in The Week, “In no other developed democracy does basically every piece of major legislation have to run a years-long gauntlet of tendentious lawsuits trying to get through the courts what parties could not get through the legislature.” 

In order to reconcile this problem, reform bills could institute a supermajoritarian requirement on judicial review cases. Meaning, instead of just requiring a 5 justice majority to strike down a law, a 6 or 7-justice supermajority would be needed. If enough justices could not agree on a clear constitutional violation, the issue would be left to the executive and legislative branch to solve. This change would restrain the Supreme Court and transfer some of its existing power to the democratically accountable branches. 

A more radical solution would eliminate the concept of judicial supremacy as currently understood by taking the first proposed move to its extreme. The Constitution does not explicitly give the Supreme Court power to declare laws unconstitutional; the concept of judicial review was created by Chief Justice Marshall in the landmark case Marbury v Madison. Theoretically, Matt Bruenig writes, as President Joe Biden could simply declare “that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power.”

This, of course, would likely be the most extreme position Democrats could adopt. It would upend over a century of American jurisprudence and likely spark enormous backlash from the judicial system which has traditionally been ultra-protective of its jurisdiction. However as Lincoln demonstrated, if given the right circumstances, a President can harness unpopular Supreme Court decisions to turn public opinion towards ignoring judicial review. 

The Bottom Line:

Ultimately, potential strategies Democrats can utilize in response to a Supreme Court Justice Amy Coney Barrett depend on what they view as the underlying issue. 

If the issue is the Republican Party and their attempts to entrench their power in the judiciary while subverting the will of the American people, restructuring the Supreme Court to protect against counter-majoritarian tactics might be the ideal solution. A Supreme Court built like the 9th Circuit would be more depoliticized and moderate. 

If the issue is the power of the Supreme Court to act as an unelected super-legislative capable of determining which laws are allowed or disallowed, then Democrats should attempt to take that power away through jurisdiction stripping or supermajority requirements. 

Ultimately though, it is clear that the current situation is unacceptable for those supporting democracy. When two-thirds of the branches of government structurally benefit a minority of the electorate, that government can no longer claim to be acting according to the will of the people. If democracy saving measures are to be instituted, much less progressive wish list items, Democrats have to start with reforming the Supreme Court.

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