We are due for a course correction [View all]

[dajoki]

To Balance the Scales of Justice, Don’t Be Afraid to Pack the Court
The lifetime appointments of Neil Gorsuch and Brett Kavanaugh cry out for Democratic hardball in response.
https://www.nytimes.com/2019/09/17/opinion/kavanaugh-trump-packing-court.html?te=1&nl=david-leonhardt&emc=edit_ty_20190917?campaign_id=39&instance_id=12436&segment_id=17083&user_id=ca02b127fa17b8d676fde27e367a12bb®i_id=89651072

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Democrats are left in an unenviable position. Should they win a federal “trifecta” — the White House, the Senate and the House of Representatives — they’ll still have to deal with a Trump-branded judiciary. It’s entirely possible that a future Democratic agenda would be circumscribed and unraveled by a Supreme Court whose slim conservative majority owes itself to minority government and constitutional hardball.

So what should Democrats do? They should play hardball back. Congress, according to the Judiciary Act of 1789, decides the number of judges. It’s been 150 years since it changed the size of the Supreme Court. I think it’s time to revisit the issue. Should Democrats win that trifecta, they should expand and yes, pack, the Supreme Court. Add two additional seats to account for the extraordinary circumstances surrounding the Gorsuch and Kavanaugh nominations. Likewise, expand and pack the entire federal judiciary to neutralize Trump and McConnell’s attempt to cement Republican ideological preferences into the constitutional order.

The reasoning underpinning this proposal isn’t just about the future; it’s about the past. We have had two rounds of minority government in under two decades — two occasions where executive power went to the popular-vote loser. Rather than moderate their aims and ambitions, both presidents have empowered ideologues and aggressively spread their influence. We are due for a course correction.

The goal isn’t to make the courts a vehicle for progressive policy, but to make sure elected majorities can govern — to keep the United States a democratic republic and not a judge-ocracy. Yes, there are genuine constitutional disputes, questions about individual rights and the scope of federal power. At the same time, there are broad readings of the Constitution — ones that give our elected officials the necessary power to act and to solve problems — and narrow readings, which handcuff and restrict the range of our government.

In the past, courts have walled entire areas of American life off from federal action. They’ve put limits on American democracy and blocked the people, through their representatives, from tackling fundamental issues of public concern. During Reconstruction, courts handcuffed the government as it tried to address violence and state-sanctioned racism; during the Progressive Era, they kept Congress from putting the economy under some measure of democratic control.

We’re living through a version of this right now. Under Chief Justice John Roberts, the Court has denied Medicaid coverage to millions of poor people, neutered the Voting Rights Act, authorized new waves of voter suppression, unleashed the power of money for entrenched interests and would-be oligarchs, and opened the door to extreme partisan gerrymandering. And while this Court hasn’t brought the absurd Lochner-era doctrines that effectively made it impossible to legislate working conditions back from the dead, it has, in Justice Elena Kagan’s phrase, “weaponized” the First Amendment to strike down economic regulation and undermine organized labor.

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