The Supreme Court and the Looming Struggle over Democracy

On February 13, 2016, on the day Justice Antonin Scalia died, Senate Majority leader Mitch McConnell famously said: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president." On September 28, 2020, on the day Justice Ruth Bader Ginsburg died, however, he hypocritically abandoned his newly contrived precedent and took the exact opposite position: "President Trump's nominee will receive a vote on the floor of the United States Senate." Needless to say, the difference between the two situations has nothing to do with the constitution or legal precedents, and everything to do with the Republican party's determination to grab for itself another Supreme Court seat.

Of course, the Constitution says nothing about such situations. It simply authorizes the president (presumably as long as he is president, i.e., until 12:00 noon on Inauguration Day) to "nominate" Justices, dependent on the "advice and consent" of the Senate (Article II, Section 2). In 2016, President Barack Obama, as he was surely entitled to do, nominated Merrick Garland to replace Antonin Scalia on the Supreme Court. The Senate, as it too was entitled to do, decided not to consent to his nomination. In 2017, the new president nominated someone else, who then received the requisite confirmation from the Senate.

That Supreme Court appointments carry such weight is an extremely unfortunate aspect of how our political system has evolved, a reflection of the excess power the Supreme Court has arrogated to itself over time, a process that has made it, in David Kaplan's famous words, "the most dangerous branch." In 1993, Ruth Bader Ginsburg herself famously pointed out the judicial over-reach in Roe v. Wade, arguing that "a less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day ... might have served to reduce rather than fuel controversy."

Maybe some future Congress will reassert the constitutional balance, but for that it would be unwise to hold one's breath in expectation. For now, we are stuck with an over-mighty Supreme Court and the distortions this causes in our politics - not least that the composition of the Court was a major motivator for many Trump voters in the 2016 election and may well become a major motivator for voters on both sides in the 2020 election.

The Supreme Court constitutes one part - a very consequential part - of the looming struggle over democracy. A president elected by a minority of Americans and a Senate elected by a minority of Americas, and their political party apparently determined at all costs to exclude the majority from political power, will probably proceed to seat on the Supreme Court some creature of the Federalist Society, who can be counted on to preserve, protect, and defend the capitalist oligarchy.

What would an alternative, majoritarian, agenda look like?

In the event such a movement were to acquire control of both the presidency and both houses of Congress, some basic steps to restore democratic legitimacy might include:

1. Abolishing the filibuster (itself a recent innovation, the abolition of which would be essential in order to accomplish almost anything else)

2. Immediately passing pandemic relief legislation and provisions to strengthen our weakened public health infrastructure

3. Restoring the 1965 Voting Rights Act the Republican Court destroyed in 2006 in Shelby v. Holder, with additional adaptations to address more recent voter suppression efforts and new challenges from foreign interference

4. Expanding Medicare, Medicaid, and the ACA to ensure universal health care coverage for all Americans

5. Finally passing Comprehensive Immigration Reform

6. Offering full statehood to the District of Columbia and Puerto Rico

7. Increasing the number of Supreme Court Justices  

8. Sending to the states a constitutional amendment establishing suitably staggered 15 year terms for Supreme Court Justices.

That should keep a new Congress and a new President busy for a while!