How the Left Can Seize the Supreme Court

The Supreme Court has become a political body, and after the announcement of Justice Kennedy’s retirement, it’s up to the Democrats to take it back. Here’s how.

Marc Daalder June 28, 2018

Notions of judicial independence serve only to protect those already in control of the Supreme Court. (Getty Images)

On Wednes­day morn­ing, short­ly after the Supreme Court announced yet anoth­er judi­cial vic­to­ry for con­ser­v­a­tives with their anti-union rul­ing in the Janus case, Rep. Adam Smith (D‑Wash.) said that the Supreme Court is no longer a judi­cial body.” Instead, he told reporters, it is an arm of the Repub­li­can Party.”

In order to act as a real opposition party and concretely block the Right’s judicial and legislative agenda, Democrats need to accept that the Supreme Court is a political body and seize it.

Just hours lat­er, Jus­tice Antho­ny Kennedy announced his retire­ment — and with it, yet anoth­er oppor­tu­ni­ty for Don­ald Trump to appoint a judge to the bench of the high­est court in the land, firm­ly cement­ing a con­ser­v­a­tive major­i­ty for years to come. This devel­op­ment has wide-reach­ing impli­ca­tions for abor­tion rights, gay mar­riage, gun con­trol, and almost every oth­er social and polit­i­cal issue that could come before the court.

The Left, how­ev­er, still has a chance to fight back and seize the court.

The first step entails rec­og­niz­ing, like Smith did, that the Supreme Court is now a polit­i­cal body. Although Repub­li­cans haven’t explic­it­ly admit­ted this, they clear­ly under­stand it to be the case. Don­ald Trump’s release of a short list of con­ser­v­a­tive can­di­dates for Antonin Scalia’s vacant seat, while still a can­di­date, was an unprece­dent­ed move.

Fur­ther evi­dence of the Court’s politi­ciza­tion can be found in its own rul­ings. Increas­ing­ly, the Court rules 9 – 0 on non-polit­i­cal mat­ters and 5 – 4 on polit­i­cal ones, and the lat­ter deci­sions are almost always along par­ty lines. While Kennedy served as a swing vote in a few key cas­es, he still sided with con­ser­v­a­tives far more often than with lib­er­als on the Court — in 2018, Kennedy sided with con­ser­v­a­tives in all 14 of the ide­o­log­i­cal­ly-split 5 – 4 votes.

So, when push comes to shove, the Supreme Court rules with what­ev­er par­ty or ide­ol­o­gy has the major­i­ty. The Right under­stands this, which is why they’ve pushed so hard to take con­trol of the Court (and the rest of the judi­cia­ry). The Left, too, needs to come to terms with this fact and wage an all-out cam­paign to seize the court.

There are two mech­a­nisms that the Left can rely on to take back the Court: impeach­ing sit­ting jus­tices and pack­ing the Court.

The prece­dent for impeach­ing jus­tices — which only requires a sim­ple major­i­ty of the House and two-thirds of the Sen­ate — can be found in the case of Samuel Chase, appoint­ed to the Supreme Court by George Wash­ing­ton in 1796.

Upon wit­ness­ing efforts by the Anti-Fed­er­al­ists under Thomas Jef­fer­son to weak­en the judi­cia­ry in the ear­ly 1800s, Chase spoke out against the president’s poli­cies. In response, Jef­fer­son worked to impeach Chase. The House of Rep­re­sen­ta­tives impeached him but the Sen­ate did not con­vict him, mean­ing he could remain on the Court. Nonethe­less, the sce­nario is com­mon­ly cit­ed as hav­ing two lessons: that the inde­pen­dence of the judi­cia­ry has to be pre­served and that the judi­cia­ry shouldn’t involve itself in polit­i­cal matters.

Now that the Supreme Court clear­ly has become polit­i­cal, these notions of judi­cial inde­pen­dence serve only to pro­tect those already in con­trol of it. Democ­rats ought to embrace the notion that the mem­bers of the Court lost their priv­i­lege of inde­pen­dence when they became bla­tant agents for their par­ties. If the Democ­rats can gain con­trol of the House and the Sen­ate in Novem­ber, they can begin impeach­ment pro­ceed­ings against con­ser­v­a­tives on the Court.

Impeach­ment is the eas­i­est of the two options to achieve, but the alter­na­tive lies in court pack­ing. There is some prece­dent for this as well. In 1937, after win­ning reelec­tion but hav­ing to watch many of his sig­na­ture New Deal poli­cies fall under the ham­mer of the Supreme Court, Franklin Roo­sevelt pro­posed a nov­el plan: expand­ing the Court. The num­ber of jus­tices isn’t ordained by the Con­sti­tu­tion, but rather by the Judi­cia­ry Act of 1869 — chang­ing the law is, in the­o­ry, a per­fect­ly legal opportunity.

FDR faced mas­sive back­lash for his pro­pos­al. It was wide­ly seen as an unnec­es­sary assault on the judiciary’s inde­pen­dence. At the time, such crit­i­cism of the plan was fair — although the Court was rul­ing with con­ser­v­a­tives, it wasn’t as bla­tant­ly polit­i­cal as it is today. Now, giv­en that we’ve tossed the inde­pen­dence of the Court out the win­dow, court pack­ing is as valid as impeachment.

Court pack­ing isn’t as viable for the left today, how­ev­er. First, such a plan would need to pass through the Oval Office, requir­ing a veto-proof two-thirds major­i­ty in the House and the Sen­ate. Sec­ond, open­ing up more Supreme Court appoint­ments only works if the Pres­i­dent will appoint left-wingers. Nonethe­less, it’s a poten­tial strat­e­gy for the future, when a Demo­c­rat comes into office.

Before impeach­ment or court pack­ing become pos­si­bil­i­ties, how­ev­er, Democ­rats have to take back Con­gress and gain at least a two-thirds major­i­ty in the Sen­ate. In the mean­time, Pres­i­dent Trump has the oppor­tu­ni­ty to ram a Supreme Court nom­i­nee through the Sen­ate before Novem­ber — or so it seems.

Already, numer­ous Demo­c­ra­t­ic leg­is­la­tors have come out in sup­port of hold­ing to the McConnell Stan­dard.” When Sen­ate Major­i­ty Leader Mitch McConnell (R‑Ky.) refused to hold hear­ings on Mer­rick Gar­land, then-Pres­i­dent Obama’s nom­i­nee to replace Antonin Scalia in 2016, he unwit­ting­ly equipped Democ­rats with a pow­er­ful rhetor­i­cal argu­ment on delay­ing the nom­i­na­tion process in an elec­tion year.

McConnell, of course, doesn’t care about hypocrisy or judi­cial inde­pen­dence — he just wants to secure the Supreme Court for the Right. If he has the oppor­tu­ni­ty, he will force any Trump nom­i­nee through the Senate.

As Gre­go­ry Koger writes in Vox, how­ev­er, the Democ­rats can shut the Sen­ate down with a pro­ce­dur­al mech­a­nism. By refus­ing to par­tic­i­pate in roll call votes, Democ­rats can pre­vent the Sen­ate from func­tion­ing until Novem­ber, if nec­es­sary. Doing so means that Democ­rats don’t need to pray pro-choice Repub­li­can sen­a­tors like Susan Collins will join with them.

If Democ­rats take back the Sen­ate in Novem­ber, they can sim­ply refuse to allow hear­ings on any Trump nom­i­nees until the next fed­er­al elec­tion — there is no way Repub­li­cans can push a jus­tice through with­out a major­i­ty. While Democ­rats won’t be able to con­vict jus­tices in impeach­ment tri­als with­out a two-thirds major­i­ty, they can bide their time and allow the Court to rule split — or with Kennedy hang­ing onto his seat while he waits for his replacement.

These are all rad­i­cal mea­sures that appear to be shat­ter­ing a bipar­ti­san con­sen­sus around judi­cial non­par­ti­san­ship and inde­pen­dence. How­ev­er, the Supreme Court isn’t liv­ing up to its own non­par­ti­san and apo­lit­i­cal man­date — and with the incred­i­ble pow­er it wields in our sys­tem, allow­ing it to go on unchecked would be dis­as­trous for the country.

In order to act as a real oppo­si­tion par­ty and con­crete­ly block the Right’s judi­cial and leg­isla­tive agen­da, Democ­rats need to accept that the Supreme Court is a polit­i­cal body and seize it.

Marc Daalder is a jour­nal­ist based in Detroit, Michi­gan and Welling­ton, NZ who writes on pol­i­tics, pub­lic hous­ing, and inter­na­tion­al rela­tions. Twit­ter: @marcdaalder.
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