In case you missed it, New York Times columnist Jamelle Bouie made a compelling argument this week that, in light of the Trump administration’s aggressive right-wing court packing of recent years, Democrats should consider expanding the Supreme Court if they somehow sweep the presidency and Congress in next year’s election.
As Bouie points out, even if the Democrats do win such a sweep, it’s entirely likely that a coterie of right-wing judges made possible by years of hardball minority government could well stymie the policy agenda that voters will have endorsed. This, Bouie says, would represent a miscarriage of justice to which Democrats should respond with their own brand of hardball by expanding the Supreme Court:
Congress, according to the Judiciary Act of 1789, decides the number of judges. It’s been 150 years since it changed the size of the Supreme Court. I think it’s time to revisit the issue. Should Democrats win that trifecta, they should expand and yes, pack, the Supreme Court. Add two additional seats to account for the extraordinary circumstances surrounding the Gorsuch and Kavanaugh nominations. Likewise, expand and pack the entire federal judiciary to neutralize Trump and McConnell’s attempt to cement Republican ideological preferences into the constitutional order.
The reasoning underpinning this proposal isn’t just about the future; it’s about the past. We have had two rounds of minority government in under two decades — two occasions where executive power went to the popular-vote loser. Rather than moderate their aims and ambitions, both presidents have empowered ideologues and aggressively spread their influence. We are due for a course correction.
The goal isn’t to make the courts a vehicle for progressive policy, but to make sure elected majorities can govern — to keep the United States a democratic republic and not a judge-ocracy. Yes, there are genuine constitutional disputes, questions about individual rights and the scope of federal power. At the same time, there are broad readings of the Constitution — ones that give our elected officials the necessary power to act and to solve problems — and narrow readings, which handcuff and restrict the range of our government.
Bouie goes on to acknowledge that his proposal will be controversial and not without many potential pitfalls — both political and constitutional. But he also notes that when President Franklin Roosevelt tried such a move in the 1930’s, it ultimately produced the desired result.
Roosevelt eventually came to court-packing as the solution to this problem. He was forced to abandon the plan, but it had the desired effect: The Court allowed him — and Congress — to govern. Facing similarly hostile ideologues, as well as an organized effort to entrench minority rule, today’s Democrats should learn from this example.
Bouie’s argument is certainly a provocative one, but one thing he is assuredly correct about is that the Right has been the only side in the national political debate that’s truly been playing hardball politics in recent decades. This needs to change.