supreme court

Republicans Are Daring Democrats to Expand the Supreme Court

They’re asking for a packin’. Photo: Brendan Smialowski/AFP via Getty Images

In March 2016, Senate Republicans declared that election year Supreme Court appointments were an affront to popular sovereignty so odious, they could not even dignify Merrick Garland’s nomination with a hearing.

On Monday night, eight days before the 2020 election, and after more than 50 million Americans had already cast their ballots, Mitch McConnell’s caucus confirmed Amy Coney Barrett to the Supreme Court on a party-line vote.

Shortly after the deed was done, Barrett gamely served as a prop in a Trump campaign ad, the Supreme Court’s conservative majority restricted voting rights in Wisconsin, and the House Judiciary Committee tweeted the following:

This gloating is contrary to the conservative movement’s best interests. Part of what makes the right’s 6-3 majority such a prize, after all, is that the Supreme Court is widely understood as a neutral, nonpartisan authority. As such, it is an ideal vehicle for quietly advancing right-wing policy aims too unpopular to implement through the elected branches of government. And yet, facing a high probability of unified Democratic government next year, and much progressive chatter about expanding the high court, the House Judiciary Committee and Trump campaign are openly portraying a Supreme Court appointment as a partisan coup.

There are two (complementary) explanations for this behavior: (1) Conservatives see little point in advancing their ideological project if they can’t “own the libs” while doing so, and, more importantly, (2) they believe that Senate Democrats are chumps whose threats of court expansion are empty bluffs.

The conservative Supreme Court majority’s decision on voting rights in Wisconsin Monday night evinced a similarly low estimation of the threat that Democrats pose to their power.

As of early September, the average time it took for a first-class letter to reach its destination in Wisconsin was ten days. We are now just seven days away from the election, and 700,000 requested mail ballots in Wisconsin have yet to be returned. Taken together, these data points suggest that unless a grace period is established, and Wisconsin election officials are empowered to count absentee ballots that were mailed before Election Day but arrived days after, many thousands of Wisconsin voters will be disenfranchised through no fault of their own.

This fact does not trouble the Wisconsin state legislature, where Republicans boast a nigh-indestructible majority thanks to gerrymandering and urban-rural polarization. The Badger State GOP knows that mail-in voters lean left, so they are happy to let their votes be thrown out. But a federal district court ruled that this was contrary to the public’s constitutional rights. And it mandated that Wisconsin election officials count ballots that arrive up to six days after November 3. On Monday night, five conservative Supreme Court justices threw out that decision. Most of the jurists did so on the grounds that only the (gerrymandered, GOP-dominated) state legislature has the authority to change election rules. But Brett Kavanaugh went a bit further, making a substantive case for the Wisconsin GOP’s opposition to a grace period:

For important reasons, most States, including Wisconsin, require absentee ballots to be received by election day, not just mailed by election day. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter. Moreover, particularly in a Presidential election, counting all the votes quickly can help the State promptly resolve any disputes, address any need for recounts, and begin the process of canvassing and certifying the election results in an expeditious manner. 

There are several problems with this line of reasoning. One is Kavanaugh’s suggestion that there is something unusual or inherently suspicious about absentee ballots delivering an election to a candidate who was trailing in the partial returns broadcast on Election Night. This is, in fact, a common occurrence that happens in multiple federal races just about every cycle. Further, while the principle “American cable news watchers must enjoy a satisfying ending to their Election Night viewing experience” is consistent with Trump’s Twitter pronouncements, it exists nowhere in American jurisprudence. More alarmingly, Kavanaugh appears to endorse the Trumpian notion that the partial returns broadcast on Election Night constitute the only legitimate vote count, when he writes that absentee ballots could “flow in after election day and potentially flip the results of an election” (unless one posits that the Election Night tally is the only legitimate count, such absentee ballots would not flip the election’s result but reveal it).

But Kavanaugh’s opinion is most audacious when read in the context of Wisconsin state politics. The Supreme Court justice asserts that the Wisconsin state legislature wants to “avoid the chaos and suspicions” of a delayed vote count, and that the judiciary has no business thwarting its legitimate interest in doing so. But this is manifestly untrue. At present, Wisconsin state law prohibits clerks from counting absentee ballots that have already been mailed in until the morning of Election Day. If the Wisconsin GOP’s opposition to an extended deadline for absentee ballots was motivated by a desire for a quick, clear Election Night count, then it would have overturned this law — and empowered election officials to start counting returned mail ballots today. Instead, the GOP-controlled state Senate has declined to pass a bill that would do precisely this. Such inaction makes no sense if the Wisconsin GOP wants, above all, “to definitively announce the results of the election on election night.” By contrast, if the party wants to invalidate or undercount as many mail-in ballots as possible — because mail-in voters lean Democratic, and they would like Donald Trump to win their state, by hook or by crook — then it makes perfect sense for Wisconsin Republicans to oppose both giving mail voters a grace period and allowing clerks to start counting the mail-in ballots they already have.

In a bizarre coincidence, the GOP has adopted the exact same posture in another crucial 2020 battleground. In Pennsylvania, Republicans fought hard (if unsuccessfully) to block a grace period for mail-in ballots, and are now obstructing Democratic governor Tom Wolf’s efforts to let clerks get counting.

All of which is to say: The conservative movement is no longer bothering to disguise the authoritarian partisanship that animates its judicial project. Supreme Court justices are appearing in Trump ads and gutting voting rights while reciting Fox News talking points in their opinions. The House Judiciary Committee is trolling Hillary Clinton. And the Republican Senate Majority Leader is telling his Democratic colleagues that he knows they’re too meek to do anything about it.

“A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” Mitch McConnell said from the Senate floor Sunday. “They won’t be able to do much about this for a long time to come.”

But “they” can. If Democrats win control of the House, Senate, and presidency this November — which forecasters give them a better than even chance of doing — they will have the power to pass a bill that would add new justices to the Supreme Court, or even change its entire structure. In recent days, some in the party have signaled an interest in exercising such power, norms and public opinion be damned.

Weeks ago, Maine senator Angus King said that he was “100 percent opposed” to abolishing the legislative filibuster, a precondition for court expansion (under no circumstances will there be 60 Senate votes for adding seats). Yet on Monday, he evinced sympathy for court expansion, telling CNN, “the size of the Supreme Court is not set in the Constitution. It’s up to the Congress. It’s changed seven times over our history. And by the way, the Republicans who are clutching their pearls now … in three states … over the last three or four years, the Republicans have packed their courts!”

Meanwhile, Delaware senator Chris Coons, a moderate and consummate institutionalist, recently told Axios, “If we happen to be in the fact pattern where we have a President Biden, we’ll have to look at what the right steps are to rebalance our federal judiciary.” Biden himself declined to disavow court expansion at the first presidential debate, even as he eagerly distanced himself from left-wing priorities that poll better than adding justices to the Supreme Court, such as Medicare for All and a fracking ban. Since then, the Democratic nominee has announced that if elected, he will form a bipartisan commission to issue a report on how the federal judiciary should be reformed. (Such a commission would be more likely to endorse reforms like “the balanced court solution” than straight-up court expansion, but even the former would deprive the right of the generational judicial dominance they thought they’d won when Ruth Bader Ginsburg died.)

None of this has been sufficient to tame the Roberts Court’s appetite for voter suppression, or the congressional GOP’s thirst for rubbing liberals’ noses in their judicial triumph. Conservatives are so unafraid of Senate Democrats, they are daring them to take a swing at their 6-3 majority. The American right has effectively bent its arms into an approximation of a chicken’s flapping wings and begun shrieking “balk, balk, balk” at Chuck Schumer.

Whether this will prove sufficient to persuade 50 Senate Democrats to support court reform next year remains to be seen. But for the moment, there’s some reason to hope that Republicans have taught moderate Democrats what progressives never could: that there is no “independent” judiciary for them to preserve.

Republicans Are Daring Democrats to Expand the Supreme Court