This commentary is part of The Appeal’s collection of opinion and analysis.
I should start by saying that I assume, for now, that Republicans in the Senate will rush to confirm a successor to Supreme Court Justice Ruth Bader Ginsburg, the liberal stalwart and pioneer of gender equality who passed away on Friday at the age of 87.
Sure, many of those same Republican senators repeatedly, emphatically declared four short years ago that the Senate does not confirm Supreme Court nominees during an election year, conjuring up a “rule” for such candidacies fueled by equal parts political expediency and a cheerful willingness to make things up. “The American people should have a voice in the selection of their next Supreme Court Justice,” explained Senate Majority Leader Mitch McConnell in February 2016, hours after the late Justice Antonin Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.”
Since Donald Trump took up residence in the White House, however, Republican lawmakers have ably proven themselves unwilling to demonstrate anything resembling intellectual honesty or moral courage. By Election Day 2020, or, at the very latest, by Inauguration Day 2021, one conservative ideologue or another will likely occupy Ginsburg’s seat on the bench, after solemnly pledging during confirmation hearings to “respect precedent,” “only call balls and strikes,” and “uphold the rule of law,” all while mentally composing gleeful majority opinions to gut reproductive rights, rubber-stamp the Trump administration’s latest bit of xenophobia-as-public-policy, destroy the power of working people to organize, and gerrymander nonwhite people out of electoral existence. It is my fondest hope that, by some miracle, this scenario does not come to pass.
But recent history, to put it delicately, has given me little reason to be optimistic.
Already, Democratic presidential nominee Joe Biden has called on the Senate to wait to confirm Ginsburg’s replacement until after the election. This is good and correct; it is also not far enough. Biden and Senate Democrats must lay out the stakes of the war to come now, in clear and unambiguous terms: If Republicans fill the seat, the next unified Democratic government—which could, in theory, come as soon as January—will abolish the filibuster and pack the Court.
Such proposals are hardly new, but especially since McConnell’s successful theft of Scalia’s seat, the prospect of adding a justice or two or five has gone from reliable law review article fodder to borderline table stakes for progressive politicians. Expanding the Court’s membership would not be as difficult as it might sound: Article III of the Constitution established “one Supreme Court,” but does not prescribe its size. Instead, the Framers entrusted those details to Congress, which settled at nine after brief dalliances with five, six, seven, and ten. But there is nothing sacred about the status quo; as I’ve written previously, changing it requires only a legislature willing to pass a bill, and a president willing to sign it.
Packing the Court would not retroactively return Justice Neil Gorsuch’s seat to the Democratic side of the ledger, or remove Republican Justice Brett Kavanaugh from the seat he won only after making perhaps the most nakedly political appeal for confirmation in the Court’s history. But it would certainly dilute the impact of their appointments, and give the new few decades of groundbreaking, lifesaving, planet-preserving progressive initiatives—Medicare for All, a Green New Deal, and so on—a fighting chance at surviving judicial review.
One lawmaker gets it. After news of Ginsburg’s death broke, Massachusetts Senator Ed Markey made clear his position on what the Democratic caucus should do next. “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” wrote Markey, the upper chamber’s architect of the Green New Deal. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
This is not to suggest that this is or should be a bluff—a savvy threat that will cow Republicans into submission, jolting them out of the depths of grinning shamelessness in which they’ve taken up semi-permanent residence. Taking over the federal judiciary is the conservative movement’s most important task, and Ginsburg’s death leaves it on the cusp of succeeding beyond Lindsey Graham’s wildest dreams. Even if Democrats were to control the White House and both chambers of Congress, there is no element of any progressive wish list that this Court will allow to stand. A solid 6-3 Republican majority, anchored by Chief Justice John Roberts, the 53-year-old Gorsuch, the 55-year-old Kavanaugh, and a fifty-something Federalist Society member to be named shortly would gum up the works of government for a generation, at the very least.
It is for this reason that the GOP’s scramble to fill Ginsburg’s seat are all but assured to be successful: As hypocritical as doing so will be, they cannot afford to turn back. In 2016, McConnell bet his entire legacy on the Supreme Court, and watched it pay off in spectacular fashion. He has come too far to fold his cards in the name of legislative comity or procedural fairness. Replacing Ginsburg, the Court’s greatest champion of reproductive rights, is a goal anti-choice conservatives have been chasing for years. If anything, the slightly accelerated timeline will just make its culmination that much sweeter.
So far, Biden has not made the Supreme Court a central aspect of his candidacy. Although he has pledged, if elected, to appoint the first Black woman to the Court, addressing the colliding crises of climate change, a deadly pandemic, and the ensuing economic catastrophe have understandably dominated his campaign-trail pitch. When asked, he has expressed skepticism about the wisdom of Court-packing, fearing a never-ending tit-for-tat struggle he feels would inevitably ensue. “We had three justices. Next time around, we lose control, they add three justices,” he said last year. “We begin to lose any credibility the court has at all.”
It’s worth questioning his implication that the Supreme Court, particularly under Trump, is a credible institution in the first place, or deserves to be treated as such. But in any event, the time for this sort of handwringing from Biden is over. A nine-justice Court could permanently entrench minority rule in this country, illegitimately propping up a dying party and a dying ideology that depends on overt appeals to racism and bigotry for its continued electoral relevance. A Court with more seats is not guaranteed to solve this problem. But at this point, it is, more or less, the only hope to do it.
Jay Willis is a senior contributor at The Appeal.