There’s been a lot of demands that Democrats do something about the upcoming ruling overturning Roe v Wade but not a lot of consensus on what. I’ve been surprised at some of the negative responses to the suggestion to unpacking the court- it’s by far the easiest and quickest way to undo the ruling. I’m not certain that opposition to packing the court is logical, but let’s at least cover that basis first. We can get to the emotional reason why people might oppose it next. I am NOT going to get into the electoral politics of it, because I don’t believe there is a way to know for sure how the public will react.
Let’s start with a few premises:
A. The GOP will NOT, at any level, voluntarily cede power on the court. It has worked for literal decades to get this far and they’re not turning back now. I’m just going to assume you all agree.
B. It is better to get something you want some of the time, than get something you want NONE of the time.
C. Public opinion is on the side of keeping Roe as-is.
D. We should try the easiest method before trying the harder method first.
E. Every day spent without the original Roe decision damages lives. Lives of women, lives of people of color, lives of children. This is why D should be prioritized. This is not even getting into all the other evil they can accomplish.
So what to do? There are several constitutional things we could do to reverse this decision and reform the court, let’s discuss:
Wait until we control the court by the normal means of replacing retired justices. This is easy- it requires only 50+1 votes in the Senate. This, unfortunately, has some critical downsides, the largest of which is that it relies on sheer luck. Republicans would have to die or retire at exactly the times we can replace them. In practice, this means those times when Democrats control both the White House (which nominates a justice) and the Senate (which confirms them). Any other configuration will not work (see A). It also would likely take forever- the oldest Republican on the court is 73. The rest are much younger. None of them are likely to go anywhere for ten years at the earliest, and if any were to retire during a Republican controlled Senate and White House, the clock starts again because they will nominate a new young justice. Remember E, some of us don’t have that kind of time.
Impeach Justices we don’t like. There’s an idea floating around that we need some actual crime to impeach and remove justices. That’s incorrect. Impeachment is a political act and we can impeach whoever we want. The fatal problem here is that conviction requires 2/3rds in the Senate. This has happened, once, in the 18th century. In recent years this seems impossible. The process is the same as trying presidents- Donald J Trump wasn’t convicted for attempting to overthrow the government even though he was no longer sitting president and had no formal power. Removing a Supreme Court justice would very much be a problem for Republican power and again, see A.
Pass a law that institutes term limits. This is unconstitutional- justices serve as long as they’re capable and not doing things that demand impeachment. And guess who’d decide the constitutionality of such a law? The Supreme Court. They already don’t care about public opinion (see C) and will not vote to limit their own power (see A), in other words, they will rule it unconstitutional.
Amend the Constitution requiring term limits or some other reform. Of all the different ideas, this is by far the most difficult to accomplish. The last time the constitution was amended was thirty years ago, on a fairly mundane issue. The reason is that constitutional amendments require a high level of cooperation between the parties. The House AND Senate must pass the amendment by 2/3rds majority vote. Then it goes to the states, where THREE QUARTERS OF STATES must pass it into law. There are so many veto points here, and at least half of states are dominated by Republicans. Would they agree to diminish the power of the one branch of government they are almost guaranteed to control for the next few decades? I don’t think so, see A.
And even if it were possible, it would take a very long time (see E). The most recent amendment was winding its way through the states for two hundred years.
Unpacking the court. This requires a simple 50 votes in the Senate (with a tie-breaking vote by the VP) to undo the filibuster and pass a law changing the number of justices and a bare majority in the House. The president would then be free to nominate new justices and these justices would just need a majority (50+1) vote in the Senate (no action by the House needed). If we had compliant senators, this could be accomplished this term.
Unpacking the court meets our guidelines for E, because it’s the quickest, and D because it has the least barriers to success.
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So what’s with the negative reception? Logically, Unpacking the Court is the clear winner here. But I have noticed some complaints.
The GOP could do the same. It could. But see B. If I tell you that you can have a free lunch every Tuesday, do you say no because it’s not every day? If I tell you that our prisons will have less people of color in them because some of the time their behavior is not being criminalized, is that not better than prisons filling up with people of color all of the time?
It will erode faith in the Court. In the same way that foisting a decision on the American people that they don’t like (see C) won’t? Ask yourself- other than Obergefell v. Hodges when was the last time you heard the Supreme Court ruling on a marquee issue and thought- that’s great! Was it Citizens United, which allowed unlimited money into elections? Rucho v. Common Cause, which said SCOTUS can’t do anything about partisan gerrymandering? Or Shelby County v. Holder, which gutted the Voting Rights Act? This isn’t even getting into guns or bigots not wanting to bake cakes for gay people. Nearly everything the court has done in the last twenty years has been TERRIBLE for the left. This is not the side you want to be on.
There is some other thing we should try. What? I’ve laid out the constitutional methods here. If you have something extra-constitutional you want to try, I’m all ears, so feel free to suggest, but let’s try to keep them non-felonious. I should say I don’t believe there is value in directing a protest at Supreme Court members, because, see A, they are not changing their minds no matter what you shout at them and, also, see C, they know they’re not doing something popular. I guess directing protest at them makes us feel good, which has the benefit of inspiring our side.
Democrats in the Senate don't all support it so it’s not going to happen. This is true for the time being, but the idea has been gaining favor. The first place we need to start is convincing our fellow Democrats, why not start here?
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So there you have it. I will write up a second diary discussing emotional reasons for not wanting to unpack the court, but I feel pretty strong about the logic.