It’s time to stop playing nice and do something!
A despondent reader wrote to me regarding yesterday’s Around the Block entitled, “The Supreme Court is not political. Really?” (https://around-the-block.com/2020/10/27/the-supreme-court-is-not-political-really/).
“It’s all so disgusting and heartbreaking. Even when Biden gets elected, we’ve lost the Supreme Court. Whose country is this?”
While what happened in the Amy Coney Barrett Supreme Court debacle is disgusting, heartbreaking and, I might add, cynically unprecedented, it’s not over until the fat lady sings. And the fat lady is not even close to singing.
With that image in mind, imagine this conversation between the despondent one and me.
“Wait, what? A 6-3 ultra-conservative majority? And Barrett, the latest addition, only 48 years old? I think,” the despondent one says, “the fat lady already sang and you just missed it.”
“No,” say I, “she hasn’t sung and if we do the right thing, she won’t!”
“Do the right thing? What do you mean?”
“We simply need to add a few justices to the Supreme Court…at least three, maybe five,” I answer.
Wait,” says the despondent one, “we can’t do that. That’s ‘Court Packing’ and if its not illegal, it sure is immoral. Everyone will hate us.”
“And what the Republicans did with this Supreme Court nomination is some high form of morality? Especially after their Merrick Garland duplicity?”
“You’re right. That was really bad. But we’re Democrats. We’re better. We stand for truth and justice and the American way!”
“Wow,” I say, “do you really believe all that? That attitude is why we’re in this predicament. And we’ll be in it for the next ten to fifteen years; remember, Clarence Thomas, the oldest right-winger on the Court is only 72. Forget all that holier than thou mumbo-jumbo about being better than them. If we don’t do this after Biden wins and we take the Senate, then we deserve what they’ve given us.”
“Just one more thing – do me a favor, read this, ‘The Supreme Court Is Helping Republicans Rig Elections – Adding more justices to the bench might be the only way to stop them,’ from Adam Serwer of The Atlantic, and then let’s talk. And remember, while Serwer is focussing on elections and SCOTUS’ impact on the sanctity of the voting franchise, we all know their devious impact extends much, much further and will, negatively and frighteningly effect our entire way of life.”
(Be forewarned – this is an extremely well-argued, but very long, but piece. For those of you who just want to cut to the chase, here are some excepts:)
“The Democratic presidential nominee, Joe Biden, has refused to rule out the possibility of expanding the Court, and Republicans have responded with considerable alarm and anguish.* They (Republicans) sacrificed their dignity, their House majority, and their principles to elevate a clownish reality star to the presidency, a would-be strongman whose disastrous tenure has seen hundreds of thousands of deaths, the collapse of the American economy, and the nadir of American global influence. Everything Republicans have done for decades has led to this moment, and the possibility of that victory becoming Pyrrhic is terrifying for them. That’s a shame, but it does not begin to justify accepting the Supreme Court’s assault on the franchise. Certainly, one party engaging in constitutional hardball while the other adheres to a set of norms that no longer exist creates perverse incentives.* But reaching a détente between the parties is less important than preventing the Court from foreclosing on democracy for millions of vulnerable people.“
“Expanding the Supreme Court will not destroy the Republican Party, nor will it usher in a one-party state controlled by the Democrats. Far from threatening the health of the republic, an expanded Court promises to restore it by protecting the franchise.* Should Republicans lose one of the major counter-majoritarian levers of American democracy, they may be forced to relinquish the politics of white identity that have posed the most dire threat to liberty since the nation’s founding.”
“Republicans appear committed to an agenda of dispossession and disenfranchisement, entrenching minoritarian rule without the consent of the electorate.* Their appointees to the high court are bound to a legal ideology that would accept all but the most obvious of Jim Crow–era voting restrictions. The Democratic Party is left with only one option if it wishes to defend the most fundamental rights of its constituents and the vitality of American democracy –
“Pack the Court.“*