Democrats, as one of their first acts with the trifecta under Biden, should expand the SCOTUS and the federal appeals courts to 13 members. Given the backlog of cases and increased population, an argument could be made that this needs to happen in general. In order to protect progressive legislation and our rights, especially given the increasingly fascist tilt of Republicans at all levels.
Once again, Democrats are going to be the reason we can’t have nice things. Problem is, in this case, its a Democracy. The defeatists, which encompass large swaths of the Democratic infrastructure, will have you believe that if we expand the court all of these things will happen:
1) The backlash will be severe from the electorate, and it will doom the Democrats in 2022 midterms.
This is nonsense. Note the Garland maneuver sure didn’t hurt the Republicans in 2018. Polls show 60+% of voters want the winner of the election to appoint the next justice.
So once again, Dems have majorities on their side.
2) Republicans will simply expand the court to 15, 17, 21, whatever, as soon as they have the power to do so, leading to an endless expansion.
Let’s examine what’s really going on here.
House will be in Democratic hands for foreseeable future. Democrats have a large House majority 232 — 198. It is likely that we increase this by a few in 2020 (for our purposes, Biden wins which is why we are discussing this topic). Conservatively, we increase that to 237-198. In 2022, we will be revising House districts, and given the increase in Democratic Governors, its very likely we successfully regain 5-10 seats in key states and protecting potentially vulnerable incumbents. This is also likely to result in Dems having a majority of house delegations, perhaps assisting in another close election.
So the likelihood Republicans have the trifecta in 2024 or 2028 is extremely unlikely. Meaning that whatever court reform we initiate is likely to be good until at least 2032. Buying 12 years of protection from the Republican party slide toward fascism seems worth the risk. It will be at least 12 years, if not longer, before Republicans are able to expand the court.
It is likely the Court will be Conservative Majority for the foreseeable future. Roberts, Alito, Gorsuch and Kavanaugh aren’t going anywhere for the next decade. Maybe Thomas retires if Republicans win in 2024. But even if Thomas had to leave the court, it does us almost no good. So if we do nothing, best case scenario, in the late 2020s, we will get some sort of 5-4 conservative majority. You tell me, given the dishonesty of the Rs in the Senate, how we ever recover from this? It took Democrats winning the Presidency for 32 / 40 years to recover from the majorities that fought FDR and the New Deal.
The American People Are On Our Side. You know why Democrats don’t win in landslides, given our positions are generally those of the majority of Americans? Because we never deliver. Why can’t we deliver? One reason is the threat of the SCOTUS striking down things like the ACA. One reason is the constant threat on abortion rights (again, huge majorities support abortion rights). We appear incompetent, because politically we are.
So why wouldn’t we do this?
Because Wall St and the big hedge fund manager donors to the Democratic party don’t want change. They have invested in both parties — and they want to make sure the SCOTUS remains a bulwark against avenues toward economic justice and equality. Democrats can pass whatever marginal reforms they want, run the federal government more efficiently, but the fundamental inequality baked into our society will remain in tact.
Also, understand that there are all sorts of tactics —
Refusing to renew the debt ceiling
Keeping the Senate busy with impeachment
Using continuing resolutions and other Senate rules
— we can use to delay the vote and keep the Rs off balance. Fears that this would appear unseemly or drive turnout on the other side are not born out by polls, history (nothing happened to the Rs in retaliation for Garland) other than the enemies of progress using the media to push the phony idea that there are only downsides to this strategy.
So understand that expanding the court needs to be front and center in what Biden will do first thing if they attempt to replace RBG. If it costs us ANYTHING I’d be surprised, but so what, we’ve thrown down the gauntlet and we have likely protected our civil rights and economic rights for a generation.
It is political malpractice at best, corruption at worst.