If forced to, Democrats will do what Thomas Jefferson and Franklin Roosevelt never could: strip the Court of its immense power.
The death of Supreme Court Justice Ruth Bader Ginsburg has once again turned the Court into the focal point of American political debate. Within minutes of her passing being announced, battle lines started to form on her replacement. Democrats reminded Republicans of their previous stance on Court appointments in an election year, a stance they had used to block Barack Obama’s pick in 2016.
Republicans, with a few noteworthy exceptions, used two complementary tactics. One was an attempt to explain away their rejection of the 2016 precedent. The other, employed by Donald Trump and others, was simply to state that the previous precedent does not matter. These arguments seemed to have convinced the handful of Republican senators who may have been wavering on the question. Sensing these tactics, Democrats have already started making threats to pack or reform the Court if Republicans hammer through their third justice in four years. Even typically moderate Senate Minority Leader Chuck Schumer has hinted that he would support a packing plan. Last weekend, Schumer said, “Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year.”
The Supreme Court has been a shortcut for achieving policy goals for centuries. Conservatives used the Court to enshrine slavery in the 1850s and strike down progressive reforms in the decades after the Civil War. As Eric Levitz of New York notes, “For the vast majority of U.S. history, judicial review has served as a tool of reaction, one that allowed conservative forces to insulate the prerogatives of economic elites from democratic challenge.” But this analysis is incomplete. Liberals used the court to enact the multitude of civil liberties protections of the 1950s and 1960s. In each instance, the Court took actions that one partisan group supported and the other group opposed. This tendency has prevented either side from making significant reforms to weaken the Court, reforms that the Constitution allows for entirely.
But in all of these earlier instances, with the exception of Dred Scott, the Court has had an instinct of political survival. John Marshall’s Supreme Court went thirty years without invalidating a federal law. The Gilded Age Court strengthened the 16th Amendment allowing for the income tax, years after initially striking down the tax as unconstitutional. In the 1930s, it backed down and endorsed the New Deal. Even the Warren and Burger Courts’ cases were finessed to a certain degree. The Brown decision slowed implementation of school desegregation for over a decade. Roe allowed for a plethora of state-level restrictions on abortion rights. In many instances, the Court has tried to find a politically acceptable middle ground even when it clearly supports the prerogatives of one partisan group.
Like all other institutions in 2020, there is certainly a chance that the Court will overstep its earlier bounds. It may issue numerous rulings without fear of reprisal or concerns over partisanship. A Court with six conservative justices may easily overturn Roe v. Wade, Obergefell v. Hodges, or any number of precedents that liberals and the majority of Americans hold dear. Justices have seen the ways in which Trump and the Republican Senate have acted with impunity over the past four years. They may see themselves as Trumpian politicians with the added legitimacy of black robes.
But these actions, unlike many that Republicans have taken over the past twelve years, will certainly cause a reaction among Democrats, perhaps one even stronger than the reaction caused by the Trump presidency. For all of its horrendous flaws, the Trump administration fit the normal electoral cycle for Democratic politicians. They were out of power for two years and then back into power in the House. They could lead congressional committees again. Democrats could conduct oversight, no matter how belated and menial that oversight turned out to be. They could plan, campaign, raise funds, and appear on television every Sunday morning to respond to the week’s latest story. This status helps explain the laconic attitude of congressional Democrats in comparison to activist uproar over the current administration.
A Supreme Court that invalidated Democratic legislation on partisan grounds would be fundamentally different. Democrats take power in order to pass legislation, implement regulatory reforms, and otherwise take actions that will aid the American people and justify their Democratic votes. If the Supreme Court blocks everything that Democrats do, then why bother voting for Democrats? Why bother donating money or organizing? Why bring them onto Meet the Press if they have no power and could not change much of anything if they take office? Leftist critics would counter that institutional disadvantages such as the Senate and the Electoral College challenge the power of Democrats, and they are right, but those disadvantages take years to become evident. They can also be overcome occasionally, as 2018 showed. A completely adversarial Court means that the reason for having a Democratic Party vanishes almost overnight. Such a possibility is terrifying for Democrats, and it is a main reason why so many have already started discussing an unprecedented court-packing effort.
There is no absolute guarantee that Donald Trump will receive his third Supreme Court pick. But if he does, that justice will have the future of the institution on their shoulders. They will have to fight the enormous pressure to serve as a tool of the Republican Party for the possible decades they will be on the Court. If they fail to resist that pressure, they may end up being the last significant nominee the Court ever receives.