Why Expanding the Supreme Court Should Be a Moral Mandate in 2021
Legend has it that Abe Lincoln often asked people a simple question: “If you called a tail a leg, how many legs would a horse have?” Most people answered “five” — to which Lincoln retorted: ”The answer is four. Just because you call a tail a leg doesn’t make it one.” Lincoln knew that politicians often cover up lies with misleading labels. G.W. Bush’s “Clear Skies Act” reduced government controls on air pollution. Likewise, “literacy tests” in the Jim Crow south did not bestow literacy. They belittled. Modern leaders continue to give things misleading labels — or to apply perfectly good labels when they do not apply. There is no better example of this than the current misuse of the phrase “packing the courts.”
Critics have recently skewered Joe Biden for dodging the question of whether he would “pack the courts” if Democrats take control of the Senate, the House, and the presidency on November 3rd. I wish Biden would just dissect and answer this important question — and reveal how deeply misleading it is. To a small degree he finally began to do so in his recent 60 Minutes interview. But he didn’t really clarify how the phrase “packing the courts” is being misused. Republican leaders have been avidly overpopulating state and federal courts with conservative judges for decades. Remember when 10 months before an election was too close to accept a Supreme Court nomination? Now that Cohen Barret has been approved, eight days before an election, five of nine Supreme Court Justices have been appointed by Republican presidents who lost the popular vote at least once. Three of the nine have been appointed by a corrupt reality TV star. If Democrats take control of the presidency and both houses of Congress in November, which they have a roughly 70% chance of doing, they will do so after having lost control of Congress many times in the past when more Americans voted blue than red.
When you combine blatant gerrymandering, discriminatory voter ID laws, and laws disenfranchising people from voting after they’ve served their time (and then some) for nonviolent crimes, you create a strong anti-democracy bias. This is magnified by an electoral college that, statistically speaking, gives White voters more voice than people of color. This gets even worse when it comes to majority control of the Senate because tiny, mostly red states are wildly overrepresented. In 2019, well before RBG’s untimely death, Vox’s Ian Millhiser noted that Republicans “owe their Supreme Court majority to the fact that the Senate, which gives each person in Wyoming about 66 times more representation than residents of California, is malapportioned to strongly favor the GOP.” He adds that the Republican Senate “majority” that confirmed both Gorsuch and Kavanaugh (Trump’s first two appointments) represented almost 40 million fewer Americans than the Democrat “minority.”
America is increasingly becoming a place where “one person, one vote” has little meaning. So, let’s imagine that, this November, Democrats overcome gerrymandering, Trump’s lies about mail-in voter fraud, the disproportionate impact of COIVD-19 on the disenfranchised, and a mountain of other barriers to true democracy. If this happens, Democrats will have won an obvious mandate from American voters. At that point, failing to create a more balanced Supreme Court by expanding the number of Justices will constitute a dereliction of duty.
Where would it all stop? A popular argument against expanding the Supreme Court is the concern that doing so could someday lead to 30 or 40 Supreme Court Justices. If Republicans leaders stop subverting the will of American voters, 11 or 12 Justices should be plenty. But if future Republican leaders continue down the sordid path McConnel and Trump have paved, 12 could become 15. That exact number is up to future leaders. And it’s not a problem. During the first ever U.S. Congress, the U.S. population was just under four million people, and there were 59 members of the House, 22 Senators, and six Supreme Court Justices. Has it been wrong to expand all those numbers as the U.S. population has grown?
Many also argue that expanding the court is simply unfair — and maybe illegal. When someone steals, as Trump and McConnell have done, it’s not wrong to make them return what they stole. Likewise, Biden should not try to create a strongly blue Supreme Court — just one that is a little bluer than red, because that’s how America has long been voting. The Constitution gives Congress the right to decide how many Supreme Court Justices there are. Failing to create a Court in which the majority of Justices resemble American voters would allow ethically bankrupt leaders like McConnell and Trump to continue to control an America in which they and their party were clearly outvoted. So, let’s not hope to pack the courts in 2021. Let’s hope to debias them. Let’s make them reflect the will of American voters.