Harvard Law Prof: We Need To Pack The Court To Save Democracy

AP Photo/J. Scott Applewhite, File

Even though Sen. Joe Manchin hasn’t budged on the issue, some Democrats haven’t given up on their desire to pack the Supreme Court full of reliably progressive justices by growing the number of seats on the Court. In fact, a month into Joe Biden’s term and the rhetoric is becoming increasingly apocalyptic. At The Atlantic, Harvard Law professor Michael Klarman claims that nuking the filibuster and packing the Court is the Democrats’ “last chance to save democracy.”

The professor claims that for 20 years Republicans have been “undermining democracy” through things like requiring ID to vote, purging voter rolls of ineligible voters, and gerrymandering elections. In other words, in Klaman’s view efforts to maintain the integrity of the vote is anti-democratic, while the bi-partisan nature of gerrymandering is, in his opinion, a Republican-only political sin.

The answer to the GOP’s imagined assault on democracy, according to Klaman, is to destroy more of our political norms and adopt pure .

For Democrats to expand the Court in 2021 would, as with McConnell’s machinations, violate no constitutional rule, and McConnell almost certainly would do the same thing were he in their shoes. One of the most difficult tactical questions in contemporary politics is how to respond when members of the other party play hardball. In general, Democrats should not play the game simply because Republicans played it first. It is morally reprehensible that Republicans suppress the votes of Democratic-leaning constituencies, ignore the results of popular referenda they disfavor, eviscerate the powers of Democratic governors, and seek to overturn the results of presidential elections on the basis of unsubstantiated allegations of fraud and wild conspiracy theories. Democrats should do none of these things. And yet, it cannot be a persuasive argument against Democrats’ expanding the Court that Republicans will simply retaliate in kind one day: Republicans have amply demonstrated that they will break the norm against Court expansion when they see the advantage in doing so, regardless of what Democrats do now.

The “Mitch McConnell would do it if he could” argument doesn’t hold up, given that McConnell was the Senate Majority leader for the past several years and didn’t move to pack the Court. And frankly, Republicans didn’t start playing this game until after then-Majority Leader Harry Reid axed the filibuster for judicial appointments. Klaman is simply trying to justify his own call to obliterate checks and balances by claiming if Democrats don’t do it now then the GOP will surely do so the next time they’re in power.

And make no mistake, Klaman’s goal of expanding and packing the Court full of “progressive” Democrat appointees is all about ensuring that the GOP doesn’t regain power in Washington anytime soon. Klaman writes of establishing a new “political epoch” that keeps the GOP in the minority until it’s learned its lesson.

A series of electoral defeats might lead the Republican Party to enact a platform more appealing to today’s median voter, abandon practices of voter suppression, and perhaps even acknowledge its malfeasance in stealing a Court seat in 2016. This scenario may seem Panglossian, but the United States has periodically experienced such tectonic shifts in politics— most notably, beginning in 1896, 1932, and 1968—in which one party’s political dominance for decades eventually led the other to reform itself in order to expand its appeal. We should want this new epoch, not because it benefits Democrats, but because it benefits democracy.

Note that those previous tectonic shifts in politics all took place with the filibuster, Electoral College, and a nine-justice Supreme Court, which cuts against Klaman’s arguments that the only thing that can save the country is to change the rules to ensure that the GOP remains a political minority in Washington, D.C.

However, creating a new political epoch requires entrenching democracy. One of the first reform measures now that Democrats have taken control of Congress must involve protecting and expanding access to the ballot. Voter registration should be automatic when citizens turn 18, and easy for older citizens. Same-day registration enhances turnout without increasing fraud, despite what Republicans baselessly charge. Felony disenfranchisement, which has enormous, racially disparate effects and in many cases was instituted long ago to that exact end, should be terminated. Election Day should be made a national holiday. The number of early-voting days, polling places, and voting machines should be increased, to stop the national disgrace of forcing working-class Black Americans in Atlanta and elsewhere to wait in lines for as long as five to 10 hours to vote. Absentee ballots should be available without excuse. Onerous identification requirements for voting should be eliminated because they reduce turnout on the pretext of reducing fraud. Partisan gerrymandering has no plausible justification and should be ended.

Again, Klaman doesn’t want a debate over any of this. He simply wants Democrats to put these new laws in place and pack the Supreme Court so justices can’t rule any of these measures unconstitutional, and he wants the Left to start moving now before it’s too late.

First, Democrats may lose control of either or both houses of Congress in 2022 or even earlier, should a Democratic senator from a state with a Republican governor become seriously ill or die. Voter turnout can decline as much as 50 percent in midterm contests, when the electorate is far less demographically representative of the country as a whole. For example, after Democrats won landslide victories across the board in 2008, Republicans seized control of the House in 2010—less because of the unpopularity of Obama’s agenda than because of the radically different composition of the off-year electorate and the decision of Republican congressional leaders to sabotage economic recovery and hope voters blamed the president.

Although 2022 presents a relatively favorable slate of Senate contests for Democrats, the party’s long-term chances of Senate control are very likely to deteriorate over time. Consider that in 2016, when Hillary Clinton won the national popular vote by two percentage points, Trump won the popular vote in 30 states. In addition, for the first time since the direct election of U.S. senators began in 1914, every Senate contest in 2016 was won by the candidate of the party that also won that state’s Electoral College votes; the same was true in 2020, with the sole exception of the Maine Senate race. Similarly, in 2012, when Obama won the national popular vote by four percentage points, his Republican opponent, Mitt Romney, won the popular vote in the 25 least populous states by six percentage points—suggesting that the ideological preferences of voters in the median Senate seat are significantly more conservative than those of the median American voter. Given a combination of Senate malapportionment, current partisan geography, and the nationalization of Senate contests, Republicans enjoy a large presumptive advantage in the battle for future control of the Senate.

In other words, Klarman knows that the Democratic majority in Congress is likely to be short-lived, so the Left needs to pack the Court while they have the chance to do so. Now, I never went to Harvard, but Klarman’s argument sounds pretty anti-democratic to me. In fact, it sounds like nothing more than an authoritarian power grab designed to benefit one political party at the expense of our Constitutional system of government.

If Klarman’s court-packing dreams came to fruition, the Second Amendment (and every other part of the Constitution deemed problematic) would be obliterated by Court decisions, and individual liberties would be sacrificed in the name of “democracy.”

I’d love to say that Klarman’s argument isn’t going to get any traction in Washington, D.C., but that would simply be a lie. The truth is that this idea is already popular among many Democrats, and they’ll be applying continuous pressure on senators like Joe Manchin and Kyrsten Sinema to go along; not for the good of the party, but for the supposed good of the country.

If you want to ensure the complete fracturing of a 50-50 nation, Klarman’s idea is a good one. The professor acts as if it’s possible to disenfranchise half the nation without any negative consequences. I’m sure that Klarman knows a lot about the law, but I think he could use a refresher course in sociology and world history, because what he’s calling for would end up as the death of the United States as we know it, not the beginning of a utopian epoch of one-party rule.

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