It is infuriating that liberal America is focusing on Merrick Garland and Roe v. Wade. It’s a failure of political imagination, and shows just how far our heads are up our asses regarding the massive losses we sustained in 2016.
It’s not Roe, and it’s not Obamacare, that’s on the chopping block. It’s everything from the New Deal onward, and quite possibly every progressive reform since the Gilded Age, which is clearly the model of America that conservative SCOTUS has in mind. At a guess, the only thing not at risk, as it might be a bridge too far, is women’s suffrage in the 1920s—but considering how thrilled conservative SCOTUS is regarding restricting voting rights and allowing corporate money in politics, perhaps I’m also failing to imagine sufficiently.
It simply doesn’t matter for shit whether we retake the White House, or get 60 votes in the Senate, or have a Democratic lock on two branches of government between now and 2050. That’s roughly the beginning of the next window when we might have a chance of reversing our SCOTUS losses, and in the meantime, any Democratic initiative anywhere to the left of center-right is likely to get blown away in court. No government accountability, no restraint of corporate power, no gun control, no rebalancing of the American political map in favor of democracy.
This requires an act of political will similar to that undertaken by Republicans when they blocked Merrick Garland, and it’s a simple one: the magical number nine isn’t in the Constitution. It’s set by Congress. And when we hold Congress (as I expect we will in 2021—working from the theory that the GOP will be back in 2008 regard after Trump’s disastrous policies harm their best voters), we need to replace it with thirteen.
That’s because two1 will be the number of SCOTUS justices nominated by a president without a popular majority, and confirmed by a Senate with an even bigger skew in terms of how undemocratically votes result in apportionment of political power. Arguably, the American people want political balance on the Court—either a balance of left and right, or the nomination of centrist and centrist-left Justices going forward. (I could make an argument that 3 million in favor of Hillary argues for Justices as far to the left as Alito is to the right; instead, I’ll make the less radical suggestion that we should aim for centrism rather than liberalism.)
1I’d set this number at three due to W’s appointment of Alito, as while he was nominated in the second term, it was the power of incumbency that allowed W to get there, and that incumbency was also based on an undemocratic outcome. Again, I’ll go for the <ahem> conservative argument.
Two more Justices cancels out the undemocratic power of Trump’s nominees (so far), but that’s not balanced yet. Had these appointments been made by Hillary (or before that, Al Gore), that would have been a 22% swing to the left, not a neutralization. So we need two more votes to counter. Technically, we need four more votes to counter, bringing us to fifteen, as 2/13ths is less than 2/9ths.
Please note that while this may sound shocking, it’s perfectly allowable if Dems hold the White House and 50 seats in the Senate. Mitch McConnell’s own rules say so. These is merely a break from political norms—which the other side is quite happy to break any time they wish. I’m still not quite clear why we’re required to bring Marquess of Queensbury boxing gloves to a machete fight.
Of course, the Washington Post, New York Times, and most current Senate Democrats can be expected to gather their petticoats to their corsets and exclaim how this could never happen. That’s what happened last time: FDR’s attempt to expand the Court was shut down by Senate Democrats. What we need to do is convince our elected representatives that we are out of sufficient fucks to give such that we’re willing to sacrifice decades of political power on the altar of playing nice.2
2Meanwhile, that’s also the obvious spin that puts this into the Overton window. By rejecting Merrick Garland, the GOP is to blame for a period of political instability and breaking of norms, and the Democrats are simply responding in kind. By doing so, we’ll encourage future Congresses to take an approach short of salting the earth for partisan purposes, so Democrats can perfectly well state that they are in favor of a return to norms after past norm-breaking has been addressed.
This is all perfectly kosher under the rules. All it takes is political will. And if we don’t have sufficient will to do so, it doesn’t make a damn bit of difference how hard you work for anything else on your agenda, as it can all be shut down in an instant. Your choice.