Ds Must Expand The Supreme Court First

Add justices in February 2029

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The Trump regime has caused a terrible amount of damage to our democracy, our institutions of government, and out populace. A Democratic administration will face a huge number of urgent, desperate priorities as soon as it takes office—from holding Trump administration officials accountable, to dismantling ICE, to freeing those in concentration camps, to rebuilding public health infrastructure, to fixing health insurance markets, to breaking apart media oligopolies—and on and on and on. There are an almost infinite range of crucial challenges and they all need to be addressed as soon as possible.

Nonetheless, I think there is a clear priority. The very first thing that a Democratic President, Congress and Senate need to do is to eliminate the filibuster and expand the Supreme Court.

The reasoning here is straightforward. The court is currently ruled by a brutal Christofascist majority; it sees itself as an all-powerful legislature. And as an all-powerful, Christofascist legislature, the court is determined to prevent any and all efforts to restore democracy and end Christian authoritarian. If you do not expand the court, virtually nothing is possible. If you do, everything is.

The Court will block Democratic priorities

The evidence that the Court can and will fight relentlessly against Democratic priorities is at this point overwhelming. The increasingly rabid and overwhelming Conservative majority kneecapped any government effort at gun control in 2008; it gutted campaign finance laws in 2010; it rushed to prevent the implementation of climate regulations in 2016; it declared an end to Constitutional abortion rights in 2022; it denied the president the ability to grant student loan relief in 2023.

These decisions were all highly partisan. Justices Gorsuch, Kavanaugh and Barrett all dissembled and evaded when asked about abortion rights in their Congressional hearings, because they wanted to get on the court and destroy women’s reproductive rights and they worried that their real opinions, honestly stated, would hamper them in that goal.

Even more disturbing is the sloppy nonchalance with which the conservative judges twist law and even fact, to allow them to advance their agenda. Gorsuch, for example, claimed that the case Kennedy v Bremerton involved a coach who wanted to lead “a short, personal prayer.” In fact, the coach in question led regular, boisterous prayers on the football field, urging student athletes to join in. On the basis of his own lies, Gorsuch threw out decades of precedent banning school prayer as a violation of church and state.

Much of a hopeful Democratic agenda is predicated on the idea that Congress and the President can legislate its way around or over court decisions, either by overcoming the filibuster or overturning it. Democrats, once in power, hope to pass a national abortion rights law; they want to pass climate legislation; they want to increase taxes on the wealthy.

Given the court’s rabid partisanship and manifest bad faith, however, there is every reason to believe that, if Democrats were to pass their signature preferred policies, the court would simply find some pretext to strike them down. The court might dismiss that national abortion rights law on the ground that it violates the rights of fetuses. It could claim that an anti-gerrymandering law violated state control over elections or takes too much notice of race in apportionment. It could even throw out an increased minimum wage or higher taxes on the wealthy on some pretext, or on none.

The court has shown over and over that it is not restrained by facts or logic. It sees its role as the rightful enforcer of conservative policy, and it loves to thwart Democratic presidents and Democratic legislators. Democrats have a choice; they can enact policies they were elected to pass, or they can watch those policies die in the Christofascist court.

The Court will destroy democracy

The Court’s antipathy to Democratic policy is bad enough. But what’s worse is that the Court hates democracy itself, and will, if not restrained, destroy it in order to hand permanent Christofascist control to a far-right minority.

The first, gruesome evidence here is Trump v. United States, in which the court granted a lawless, authoritarian president broad immunity from prosecution on the grounds that he was their guy, damn it, and he should rule as a king.

The court has reaffirmed the principle that Trump should rule over us as a king repeatedly in his second term. They have shrugged at Trump’s seizure of the power of the purse from Congress, gutting Congressional oversight as they rushed to gut judicial oversight. They allowed Trump to dismantle the Department of Education without Congressional approval; they allowed him to withhold foreign aid funding appropriated by Congress—cosigning the deaths of what will probably be millions of people in a casual act of genocide.

The Court’s belief that Trump should rule without interference from the courts or Congress (though maybe with an occasional check from capital) is part and parcel of its bone deep commitment to the white supremacy he represents. John Roberts is perhaps the most powerful and committed racist to serve as chief justice since Roger B. Taney, and he has made the destruction of the Voting Rights Act and of Black voting power into his life’s work. He and his white supremacist peers (not least Clarence Thomas) dream of rendering the 14^th Amendment a dead letter, disenfranchising Black people en masse, and ensuring the unencumbered subjugation of a poor, BIPOC, female underclass.

The Court, then, will not only block Democratic legislation. It will block and vitiate Democratic efforts to restore a small-d democracy. They will work to make sure fascists are not held accountable. They will throw out any initiative to reform institutions to give non white people a fair vote—very much including any effort to enfranchise DC. They will gut any new voting rights provision, including (again) anti gerrymander legislation. They will enforce a version of the Constitution under which only white rich men have rights. And they will do everything they can to ensure that the next Republican president is more fascist, less restrained, and more powerful than the one we’ve got.

Don’t wait

The need to expand the court is obvious. But politicians worry about the electoral downsides. Many Americans do not think of themselves as partisans, and they find partisan radicalism distasteful. The ins and out of Supreme Court make-up are too complicated for most voters to follow, and they will not necessarily see how or why those ins and outs are important or how they will affect them. Better to do popular things that benefit people (middle class tax cuts!), win elections, and wait the court out, right?

This was Biden’s plan. And it dead-ended in our current fascist nightmare and the ongoing (quite successful) assault on the Constitution. So maybe we should try something different.

As the horrific first couple months of Trump’s administration demonstrated, even presidents who win by very narrow margins are granted great latitude in their first months for partisan projects, no matter how utterly corrupt, evil, and ill-advised. Compared to Trump’s rabid destruction of the entire federal government, expanding the court is small bore agenda. A Democratic president with a reasonable Congressional majority who demands, as the very first thing, an elimination of the filibuster and Supreme Court expansion, will have—in the wake of the disastrous Trump presidency—a decent chance of pushing it through.

Then, once the Court is no longer a Christofascist barrier, you can do all sorts of things. Enfranchise DC and help rebalance the Senate, at least around the edges. Tax the wealthy; raise the minimum wage; pass gun control; ensure abortion rights; pass voting rights reform. Put through all those good things that have been blocked for years, and decades, by the grotesque white supremacist imbalance of the Senate and the Supreme Court. Create a voting structure in which the Republicans can see clearly the benefits of deradicalizing.

Will that work? Unfortunately, we’re in a deep hole, and it’s hard to say if anything will work. But we know the Court is at least as dangerous a force for fascism as Trump is. To get rid of the second and ignore the first is to ensure failure and condemn us to decades, at least, of Christofascist rule.

I don’t know if we can defeat fascism. But we should at least make a good faith effort. And that means expanding the Court.