There’s a moment in The Princess Bride when the evil and conniving Prince Humperdinck, eager to finish a sham wedding to his unwilling bride, Buttercup, demands that the priest cut to the chase. As the bride’s rescuers prepare to charge the castle, Humperdinck insists, “‘Man and wife.’ Say ‘man and wife’!”
That’s basically where we are with the confirmation process for Amy Coney Barrett. As a majority of the people in this country (and, apparently, a karmically contagious coronavirus) object to the idea of rushing Barrett’s appointment, Republicans just want the Senate to say, “Supreme Court justice!” They don’t care how the Senate gets there or whether the process is so corrupt, it makes a mockery of the principle of advice and consent. They just want the votes counted. Now.
Meanwhile, the Democrats seem poised to storm the castle. Joe Biden is leading in the polls. Should he win the election (and should the GOP-stacked courts allow him to take office), there’s a decent chance he’ll be joined by a Democratic majority in the Senate and the House.
But what then? What’s the Democrats’ plan after that?
It’s essential to remember that the reason Republicans have long sought to control the courts is that they serve as an antidemocratic check on the liberal agenda—and not just for an election cycle but for a whole generation. There’s not a single Democratic law or program that a court controlled 6-3 by conservative justices cannot frustrate or block. A Republican-appointed court will smack down voting rights legislation, gun reform legislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All. Republicans wanted the court as a hedge against their waning popular support, and now they have it.
The obvious—and only—solution to this Republican power grab is for Democrats to expand the number of justices on the Supreme Court.
The argument for court expansion is often presented as retribution for Republicans messing with the court, first by blocking the nomination of Merrick Garland, now by rushing the appointment of Ruth Bader Ginsburg’s successor. But there is a higher purpose for court expansion, one that goes beyond avenging Ginsburg and Garland. Expanding the court now—through raw political power, if necessary—is the best way to reform and depoliticize the court for future generations. Expanding the court is the way to save it. It’s a lot like breaking a bone to reset the leg.
Let’s start with the obvious: We cannot go on like this. We cannot continue to exist in a polity in which the death of an octogenarian begets a generation-defining game of tug-of-war. We cannot endure under a legal system in which the death of one or two people opens the door to wild changes in our laws or the devastation of the rights of people living under them.
The way to free ourselves from the random wheel of death is to have more justices on the court. Ginsburg’s passing would have had significantly less impact on the fate of women’s rights if she had been but one of 19 people instead of nine. By the same logic, it wouldn’t have made sense for Republicans to block Garland’s appointment if it would have changed just one seat on a court of, say, 29 individuals. Every Supreme Court justice would still be important but not nearly as important as each one is now.
Moreover, a much larger court would likely lead to more moderate opinions (if not more moderate judges, since those don’t really exist). That’s because Supreme Court opinions have to be agreed to by a majority of the court. The reason some cases take longer to decide than others is not that the justices haven’t made up their minds on the outcome; it’s that they are working hard to fashion an opinion that can attract a majority of their colleagues. Trying to get a majority of your colleagues to agree with you on a 29-person court is just a different beast from trying to get your four archconservative buddies to sign on to your ruling. Decisions made for the benefit of more people tend to be watered down. That’s basically how Olive Garden stays in business.
The benefits of court expansion are so manifest that I’d be willing, as a Democrat, to put additional Republican nominees on the court, too. If you had a bill to add 20 people to the Supreme Court, I’d be willing to split the new seats between, say, 11 Democratic appointees and nine Republican ones. I’m serious. The Garland debt must be paid, and the rushed appointment of Barrett cannot be ignored, but otherwise, there’s a benefit to splitting the seats as long as both parties are willing to play ball. A court expansion bill that includes GOP buy-in would be easier for the soon-to-be white minority in this country to handle. In exchange for moderate Republican votes, moderate conservative justices could be among the new appointments.
What’s more, increasing the number of appointments could give Democrats the political leverage they need to prevail in the battle to pass court expansion. If Republicans want to work across the aisle, we can all share. But if Republicans opt to do what they usually do—namely, obstruct the political process and demand that they win all-or-nothing—well, then Mitch McConnell will just have to deal with 20 fire-breathing progressives who will blow clear a path for voting rights, women’s rights, and Electoral College reform. Then let McConnell see if he can regain enough political power in his lifetime to retake the government and add 40 of his own justices. Even the worst-case scenario is better than where we are now. If all an expanded court does is secure voting rights, that will still make it less likely Republicans will ever wield unchecked political power again.
That’s constitutional hardball. That’s making McConnell an offer he can’t refuse. To propose anything less—to walk the more judicious route of adding, say, two or four justices—would be just another example of Democrats gathering all the power and then using it incrementally in the hopes of teaching Republicans to act more responsibly next time. Adding 10 or 20 justices is the way to put Republicans in a corner where they either play ball or spend another generation trying to crawl out from their defeat.
Remember The Princess Bride: When Westley, the hero, finally catches up with Humperdinck, Westley doesn’t fight the prince to the death. Instead, Westley promises to fight “to the pain.” “It means I leave you in anguish, wallowing in freakish misery forever,” he explains. The prince, it should be noted, promptly backs down from the fight.
If the Democrats are to rise from being mostly dead to storming the Supreme Court, that’s what the goal should be. Nobody kills the evil prince. If the Democrats do this right, they won’t have to.