The United States is facing an urgent, existential problem. Thankfully, the solution is obvious, incredibly easy to implement, and incidentally, would be very helpful to Democrats. The hard part, perhaps unsurprisingly, will be convincing enough Democrats in Washington to spring for it.
President Joe Biden and Democrats in Congress must expand the Supreme Court from its current nine seats to 13 seats. They must also expand the federal judiciary. These changes can be enacted with simple majority votes from both houses of Congress, and if Democrats don’t do it within the next two years, they may well never have the power to do so — or anything else of consequence — ever again.
That’s not hyperbole: After Mitch McConnell spent four years under Trump stuffing the courts with unqualified right-wing ideologues, Republican legislatures across the country are moving toward enacting historic voter suppression laws and redistricting schemes that will eviscerate the United States’ already flawed democracy and turn it into a functional one-party state. Only an expanded court system can stop them.
There is plenty of precedent for changing the size of the federal judiciary, including the size of the top court itself. Doing it this time wouldn’t be an act of partisanship, but a necessary measure to rebalance a hijacked judiciary and save the republic.
“Republicans have stolen two Supreme Court seats, and if Democrats don’t respond in any way to check this behavior, it’s only going to get worse,” says Christopher Kang, former Deputy Counsel to President Obama and the co-founder of Demand Justice. “There needs to be some consequences, or else Republicans, in their quest for power above all else, will continue to politicize our courts.”
Democracy Is On the Verge of Breaking
With help from existing gerrymanders, Republicans in November held on to all of their legislative majorities, including in Arizona, Georgia, Pennsylvania, and Wisconsin, states that went blue in the top-line contests. Instead of recognizing and adjusting to ongoing political and demographic shifts that cost them at the top of the ticket, Republicans are instead aiming to double down on the cheating that helped them maintain their legislative power.
According to the Brennan Center for Justice, there were over 100 anti-voter bills introduced across 28 states during January. The toxic wave of proposals, introduced as “solutions” to absurd conspiracies about voter fraud and stolen elections pushed by Donald Trump and QAnon, are together a functional Jim Crow 2.0, effectively reviving mass disenfranchisement. For example:
- In Arizona, Republicans have introduced 34 anti-voting laws, which would together gut the state’s popular and wildly successful no-excuse absentee voting program and purge millions of voters. Republicans also schemed to install a right-leaning chair to lead the state’s independent redistricting commission.
- In Georgia, despite Gov. Brian Kemp’s best efforts to purge voters at an unprecedented pace, local activists helped drive record turnout. And so last week, bills introduced by Republicans included clauses to eliminate no-excuse absentee voting, ballot drop boxes, and automatic voter registration. Others in the state want to require voter ID on absentee ballots, which is undoubtedly a poll tax.
- In Pennsylvania, the legislature is pushing to change the way the State Supreme Court is elected, using gerrymandering tactics to guarantee Republican control of a body that has foiled voter suppression plans time and again. Republican legislators are also focused on ending no-excuse absentee voting and imposing other limits.
- In Texas, a true maniac Trumper is taking over the state House Election Committee, where he will be charged with investigating “integrity” issues.
These states are taking their cues from other GOP-controlled states, where things continue to get worse. Florida’s legislature already gutted the 2018 ballot initiative that was meant to return voting rights to 1.4 million formerly incarcerated people. Last year, Ohio’s Secretary of State throttled absentee ballot drop boxes. Voter ID laws cover much of the country. The list goes on and on — the point is, things are bad and about to go into overdrive.
Even Worse Gerrymandering Is Coming
In addition to state voting laws, the GOP also has full control of 18 states’ redistricting processes. Their list includes most of the states that will be gaining congressional seats after the Census results are certified, highlighted by the major battlegrounds of Florida, North Carolina, Arizona, and Texas. Meanwhile, Democrats have control of the redistricting process in just nine states; the rest are governed by independent (or quasi-independent) commissions.
The shift in seat apportionment alone could lead to a Republican House takeover in 2022, even before all the new voter suppression tactics are factored in.
As for gerrymandering, well, things are going to go from bad to catastrophic. Already, GOP gerrymandering has given them control over Wisconsin and Pennsylvania despite a majority of the state’s votes going to Democrats. It’s made it impossible for Democrats to take back legislatures in North Carolina, Arizona, or Georgia despite their growing voter share. And unlike when they rigged the maps in 2010, Republicans today know they can go all-out this time without even trying to hide their intentions.
In 2013, the Supreme Court gutted the Voting Rights Act in the Shelby v Holder decision, ending federal pre-clearance requirements for states with historic voter suppression and eliminating other key protections as well. Five years later, they gave the thumbs up to Ohio’s voter purges. A year after that, the court decided that political gerrymandering was perfectly constitutional. The list of decisions goes on and on, each adding to the obviousness of the right wing’s intent.
“The untold legacy of Chief Justice John Roberts is being an enemy of voting rights,” Kang says. “This is something that he has focused on since his days as a lawyer in the Reagan administration… Before this election, in case after case — in Texas, Florida, Alabama, and others — his Supreme Court ruled in ways that made it harder for people to vote, and harder for people to vote in a pandemic.”
And now, with Amy Coney Barrett giving them a six-to-three majority, the conservatives have a supermajority against voting rights.
Let’s talk consquences
As it stands, the voter suppression and gerrymandering that Republicans intend on instituting this year will cause Democrats to be permanently locked out of statehouse majorities, lose their Congressional majority, and likely lose their ultra-thin Senate majority, as well. After that, it will be increasingly difficult for Democrats to flip national seats in those GOP-controlled states, making them a permanent minority in the federal government, as well.
The GOP, already controlled by its fringe, will then only become further divorced from reality and rationality. Safe red districts on both the state and national level will elect more candidates from QAnon and other ultra-extremist groups. Suppression tactics used against traditionally Democratic constituencies will further incentivize Senate Republicans to embrace the far-right lunatics, as well.
A half-dozen Republican representatives helped coordinate the insurrection at the Capitol last month. Over 100 Republican representatives voted to reject the Electoral College even after the violent takeover attempt. Marjorie Taylor Greene and Lauren Boebert aren’t holding the GOP hostage — they actually represent the rabid Republican base and most of its state legislators.
If you need proof, just look to the pandemic shenanigans that have played out in states with GOP legislatures — the refusal to order mask mandates, the efforts to end responsible lockdowns, the hiding of health statistics from the general public. Iowa’s governor just cast aside almost all of the state’s precautions. They’re all driven by a pathological hunger for power at any cost.
“When a party is structurally attached to lying, really anything can happen,” says Aaron Belkin, a professor and legal activist who led the charge on ending “Don’t Ask, Don’t Tell” and is the founder of Take Back the Court, a progressive judicial expansion advocacy organization. “One of the things they lie about is elections, which is exactly what you saw last month, and that’s a very quick road to tyranny. The only path to de-radicalizing Republicans is to force them to compete on a level playing field.
“If they had to appeal to a majority of Americans, if there were no voter suppression or gerrymandering, if campaign finance limitations were restored, it would be much harder for them to win or engage in magical thinking because they couldn’t appeal to the majority of the public on the basis of conspiracies and lies,” he adds.
So What Can Be Done?
There are bills sitting in both chambers that would both reinstate the provisions that were gutted by the Supreme Court in Shelby v Holder and add additional protections. The For The People Act passed the House in 2019 but didn’t get a vote in Mitch McConnell’s Senate; now, the Democratic majority has pledged to push both that legislation and the John Lewis Voting Rights Advancement Act, which more directly targets race-based disenfranchisement.
The bills would create national voter registration, return pre-clearance to places with historic suppression, and ban gerrymandering, among other provisions. In short, it would remake American voting rights. But there’s no guarantee any of it would stand.
Take Back the Court commissioned a study of voting rights cases heard by the federal judiciary in 2020. All told, Republican-appointed judges ruled against broader democratic rights nearly 80% of the time. This includes the Supreme Court, which again, has gotten even more conservative and hostile to voting rights with the addition of Amy Coney Barrett.
“Even if Congress does pass the John Lewis Voting Rights Advancement Act,” Kang says, “I have great concerns about whether this 6-3 Trump supermajority court would uphold it at the end of the day.”
Belkin is even blunter about it: “The data suggests that they are simply politicians in robes, and they will stop at nothing as long as they think they can get away with it.”
The right-wing majority is pretty confident that it can get away with a whole lot right now. Upcoming cases on the environment, women’s rights, LGBTQ rights, and corporate tyranny will only underline the extremism that has hijacked the court.
So How Do We Fix It?
Again, it’s pretty simple: Significantly expand the Supreme Court and the circuit courts, reclaiming a judicial system that has been hijacked by the GOP over the last decade.
“Republicans have inserted their political power to effectively steal two seats from Democratic presidents, both the Scalia vacancy and the Ginsburg vacancy,” Kang says. “If those seats had not been stolen, the Democratic-appointed justices would hold a one-seat majority on the court. So we believe that in order to restore that balance, Democrats would have to add four seats again.”
There’s plenty of precedent for increasing the size of the court, too. Initially, the Supreme Court grew in concert with the circuit courts, but it hasn’t kept pace over the last century. In fact, there are now 13 circuit courts and just nine seats on the Supreme Court, which alone justifies the expansion.
Further, after Mitch McConnell’s obsessive quest to confirm right-wing appellate and federal district court judges, Democrats need to rebalance those benches, as well. Belkin calls for 250 or so overall judgeships to be created, while Kang’s Demand Justice specifically wants to see Biden add two judges for every circuit judge that Trump was able to confirm.
“McConnell stole over 100 vacancies from Obama, and for each vacancy that was stolen, you need to add two seats,” Kang says. “You can’t just nullify them one for one, because that still yields an advantage to the Republicans.”
Adding these judges will be crucial to both even out the ideological bent, but sheer workload, as well. There are more cases than ever, only so many of which actually make it all the way up to the Supreme Court. Most cases, including some of the most controversial ones, are decided by lower courts.
“Some of the things that Trump was able to do, like his attempt to ban transgender people from serving in the military or his efforts to take money that Congress had given to the military and put up his racist border wall on the southern border, those are things that the courts allowed him to do,” Kang says. “And in some cases, it was literally his judges who allowed them to do these things.”
So, Is This Actually Possible?
Well, it’ll be a hard fight, especially with the slim margins that Democrats have, but momentum is starting to build. Biden will soon announce the members of a commission charged with studying and then recommending reforms to the judiciary. Kang’s coalition has demanded that acknowledging the urgent need for reform serve as a baseline requirement for any potential member of the commission.
Belkin began his group with little support in 2018, and after two and a half years, he’s helped push the topic into the mainstream. In fact, expansion became a popular Democratic rallying cry in late October, when it looked like the party would have larger margins, and while the conversation quieted down after November, the Georgia victories revived the matter. The talking points remain the same:
Sen. Ed Markey, Rep. Mondaire Jones, and several other Democrats have continued to be outspoken about expansion, and as the Supreme Court rattles off decision’s like Friday night’s extremist decision on church closings in California, Kang believes the party will continue to become more open to this very necessary reform.
Demand Justice has other plans, as well, including instituting term limits for Supreme Court judges; adding those in would ultimately allow each president to pick at least two justices per term, disincentivizing further packing by Republicans. How Republicans might respond is irrelevant right now, anyway — as we’ve seen, if Democrats don’t take action, the GOP will do it anyway, so there’s no real reason not to go through with this essential reform.
“If Congress fails to expand the Supreme Court,” Kang warns, “then not only will we not have the opportunity to positively reform our democracy, we’re going to be on the precipice of really gutting it for generations to come.”