Pack the Court [OPINION]

In spite of her seemingly endless supply of stamina, Supreme Court Justice Ruth Bader Ginsburg shed her mortal coil last week at age 87. Ginsburg, affectionately referred to by many as the "Notorious RBG," has been canonized as a giant in judicial liberalism and women’s rights advocacy.

Her sudden passing, and the coming political melée in the Senate to fill her seat, is an added horror in what has been one of the most tenuous moments in our nation’s history.

With President Trump in office until at least January 20, 2021 and a thin Republican majority in the Senate until at least January 3, the prospects of the Democrats being able to preserve one of their liberal seats on the Supreme Court are bleak. Senate Majority Leader Mitch McConnell famously blocked President Obama from filling a Supreme Court vacancy in 2016 on the grounds that in an election year, it should be left to the American people to elect a president to fill the seat – a successful gambit that allowed Trump to tap Neil Gorsuch to fill the vacancy left by Antonin Scalia’s passing. McConnell is, of course, not extending the same courtesy to the American electorate in 2020 now that he has the power to fill the seat immediately, but that’s to be expected.

Trying to use McConnell’s words against him is a pointless exercise in naiveté. What makes McConnell one of the most effective political operatives of our time is his understanding of and commitment to the reality that politics is about outnumbering and overpowering your opponent to achieve a desired outcome. It’s what has enabled the Republicans to preserve the right-wing majority on the Court and pack the rest of the federal judiciary with Federalist Society stalwarts at a breakneck pace. There is no doubt that President Trump’s nominee will have a vote on the Senate floor.

It’s worth mentioning that there’s a slight chance enough that electorally vulnerable senators – such as Susan Collins of Maine, who has already committed not to confirm a new justice before the election – break from McConnell to present themselves as an independent voice to their voters, but the importance of a 6-3 majority on the highest court is likely to override their interest in political survival.

If the Democrats get a majority in the Senate and Biden wins the presidency, bold and decisive action is critically necessary. The only way to overcome McConnell’s influence on the Court and preserve any policy that is even mildly appeasing to the left is to adopt his philosophy of governance to its fullest extent.

The Democrats must pack the Supreme Court.

“Court packing” is a term coined in 1937 when President Franklin Delano Roosevelt proposed legislation to expand the number of Supreme Court justices after the Court spiked key programs in his New Deal legislative initiatives. There is no language in the Constitution that requires the Supreme Court to have nine justices. The number of justices on the Court was set in legislation by Congress and has fluctuated several times before finally settling on nine in the Judiciary Act of 1869. FDR’s proposal ultimately stalled in the Senate Judiciary Committee.

One thing that keeps court packing from becoming a reality is the hilariously naive notion that the Supreme Court is an institution separate from the bloodsport of politics. However, in just the last two decades, a 5-4 majority on the Supreme Court has: halted an election to hand the presidency to George W. Bush; overturned decades of campaign finance law to further poison our democratic processes; gutted safeguards that combatted voter disenfranchisement; and penned myriad other disastrous decisions on their crusade of reactionary judicial activism.

The Supreme Court is a purely political institution that will now have three appointments by a president who was rejected by the majority of the American electorate. If the Democrats regain power, they must shed their obsession with decorum and overwhelm the conservative majority on the Supreme Court with a majority of left-leaning judges. In order to do this, they must end the filibuster, a mechanism used by a minority of Senators opposing a bill to gum the works and prevent legislation from passing the upper chamber. A mechanism used more than any other time in American history by Mitch McConnell when he was the Minority Leader. 

Sadly, these are maneuvers that career centrists like Joe Biden and the Democratic leadership probably don’t have the stomach for or the interest in doing. It would take bolder and more progressive leadership than they have been willing to offer. Until then, we’re doomed to suffer under reactionary rule ruthlessly imposed upon us by a political minority.

Marcus Ferro is the host of The Marcus Ferro Show airing Saturdays on 1420 WBSM from 1 p.m. to 4 p.m. Contact him at marcusferrolaw@gmail.com. The opinions expressed in this commentary are solely those of the author.