When the US supreme court this week radically expanded the second amendment and declared most any restrictions on guns to be presumptively unconstitutional, then overturned five decades of reproductive rights and created a likely desert for abortion access all the way from Idaho to Florida, America’s grim new reality became painfully clear.
An extreme conservative majority holds absolute control over the court. They will likely hold this power for multiple generations. They intend to use it to impose a far-right vision that most Americans oppose, twisting the rule of law into whatever they say it is, depending on the ideological outcome they hope to achieve.
It doesn’t have to be this way. The US constitution offers no guidance on the number of supreme court justices. While it has stood at nine for some time, it has not always, and need not for ever. If Republicans have hijacked the court to force a minoritarian agenda on the nation, the court must be expanded and reformed to counter a rightwing power play that threatens to remake American democracy and life itself.
The court’s hard-right majority has neither popular support for its agenda nor institutional legitimacy. It is the product of a hostile takeover of the courts 50 years in the planning by conservatives who have long understood that unpopular policies that cannot be won at the ballot box can be thrust upon Americans by an unaccountable and unelected judiciary.
Five of the six conservative justices were appointed by presidents who lost the national popular vote. (Republicans have won the national popular vote once since 1988, but appointed 16 of the last 20 justices.) Two of them have been credibly accused of sexual assault. All six were confirmed by a US Senate that overweights the interests of smaller, whiter states, and is therefore regularly controlled by the Republican party even though a Daily Kos study showed that “Senate Republicans have not won more votes or represented more Americans than Democrats” since the 1990s.
Senate Republicans, of course, have used that ill-held majority to stack and rewire the court, holding a 2016 seat open for nearly a year under a Democratic president by manufacturing a rule about confirmations during an election year, but fast-tracking the appointment of a conservative in fall 2020 even after early voting had already begun.
The court’s robed ideologues then return the partisan favor. Republicans engineered the most extreme gerrymanders in modern history during the last decade, awarding themselves a disproportionate edge in swing-state congressional delegations and entrenching themselves in power in state legislatures in Wisconsin, Pennsylvania, Michigan and other competitive states even when they lose the popular vote by hundreds of thousands.
The Roberts/Alito wrecking crew then closed the federal courts to partisan gerrymandering claims, telling voters to fix at the ballot box what their own representatives have ensured cannot be undone. That obviously disingenuous reasoning was on display in Friday’s decision that overturned Roe as well, as the conservative majority pretended they were returning reproductive rights to the people and the political process, knowing full well that they themselves help rig the playing fields in those states to guarantee the anti-majoritarian position they favor.
The political process in Georgia, Ohio, Texas, Florida and so many other states has been severed from the will of the people by the anti-democratic redistricting this court blessed, allowing lawmakers to defy the will of majorities who support abortion rights even in conservative Oklahoma and Alabama.
Let’s be clear: this is a court that has been constructed to thwart the will of the people with the help of hundreds of millions in rightwing dark money, by playing brutalist constitutional hardball ripped from the autocrat’s handbook, and by exploiting the same structural inequities in redistricting, the US Senate and the electoral college that helped protect slavery and then Jim Crow. This supreme court has now placed itself above the people and above the law. Simply because they have the power. Simply because they can.
In a shattered democracy teetering on the edge of what feels like permanent minority rule, a runaway rightwing court – unbound by precedent, public opinion or history, one willing to create over two days a new American hellscape of uncontrollable concealed carry and forced pregnancies – stands as perhaps the most foreboding challenge yet to rule by and for the people.
Republicans built this anti-majoritarian court by exercising raw political power. Now those partisan justices have begun handing down partisan victories that conservatives have sought for years, dressed in the skimpiest fig leaf of constitutional law, that could not otherwise be won through persuasion or the usual political means because most Americans stand opposed to these policies. It will require the same tough-minded use of political power to undo it.
Alas, much of the Democratic leadership spent Friday sending outraged fundraising emails; Speaker Nancy Pelosi read a poem. It will take more than that. Democrats still control the White House and Congress. They can prioritize court expansion and reform now – and run on it this fall – or the current court will continue undoing public safety, the regulatory state, voting rights and reproductive health for years to come. If Justice Amy Coney Barrett serves to Ruth Bader Ginsburg’s age, she will remain on the court until 2059. Democrats will need a vacancy, control of the White House and a majority in an increasingly anti-majoritarian Senate to ever confirm another justice. Court expansion must be considered a central piece of any plan to protect American traditions of majority rule.
This is not court packing. It is balancing a court that has already been packed. It is not done in service of any partisan agenda; majorities of all political stripes, in all states, oppose this court’s agenda on gerrymandering, abortion and guns. It would not suddenly turn the high court into just another partisan political institution. That ship has long sailed. Rather, it would admit that these decisions are political, not neutral wisdom handed down by non-partisan oracles with a direct line to Adams and Jefferson in the afterlife. And it could be done through any number of thoughtful approaches: adding justices for each of the 12 circuits and the US court of appeals, instituting term limits, awarding each president two appointees, broadening the pool of potential justices to the entire federal bench and randomly drawing nine for each case.
Hardball politics determined to remake American through extra-political means created this legitimacy crisis. It will require equal determination and muscle to rescue us all from a closed game we’re all allowed to play, but only the far right can win.
David Daley is the author of Ratf**ked: Why Your Vote Doesn’t Count and Unrigged: How Americans Are Battling Back to Save Democracy. He is a senior fellow at FairVote