Restore Democracy by Packing — and then Unpacking — the Supreme Court

Duke University
Sep 24, 2020 · 5 min read
A candlelit makeshift memorial on the steps of the US Supreme Court following the death of Ruth Bader Ginsburg. Photo courtesy Wikimedia Commons.

By Andrew Foster

Though sometimes cloaked in grandiose language of personal liberty and limited government, the Republican Party has had at least two essential priorities since the 1960s. First, to maximize the interests of economic elites, including wealthy individuals and businesses, in opposition to the more egalitarian economic policies of the New Deal and the Great Society. Second, to maintain the economic and political dominance of white Americans in the face of the Civil Rights movement and an increasingly diverse and multicultural society.

Even though a majority of Americans support more progressive economic and racial justice policies, the Republican Party has had great success in advancing its agenda. As one extreme example, a recent study by the Rand Corporation shows that as a result of Republican economic policies, the 1% has gained $50 trillion in income and wealth at the expense of the rest of America since 1975. Further, whites continue to maintain extraordinary economic advantages over people of color, including a 10X disparity in household wealth — on average whites have $171,000 as compared to $17,000 for Black Americans. This is on top of the persistent disparities in employment, education, criminal justice sentencing, and even life expectancy.

The Republican agenda of economic inequality and white supremacy is bad for the country. Among other things, it undermines social cohesion and impairs our ability to solve collective problems through strong governance. The inability of the federal government to deliver a coherent, consistent, and effective response to the coronavirus pandemic is just one example of this reality. More comprehensively, a new report that compares countries across 50 indicators of well-being shows that the U.S. now ranks 28th in the world — a drop from 19th just 10 years ago. As a result, nearly 70% of Americans believe the country is on the wrong track.

All this might lead one to ask: how, in a democracy, can a political party that fights for an unpopular agenda that objectively harms the interests of the majority of citizens continue to win elections and maintain a controlling stake in the institutions of governance at both the federal and state level. This is not a new question and numerous thinkers have tried to answer it.

The death of Supreme Court Justice Ruth Bader Ginsburg and the Republican Party’s hypocritical and thoroughly predictable response to it, however, provide the clearest answer. Republicans recognize that politics is ultimately about power and they are unconstrained in using it to rig the rules of our democratic system and institutions to allow for their minority control. When, as is the case with the timing of the vote to name the next Supreme Court justice, even this is not sufficient to achieve their ends, they simply ignore even their own rules and act as needed to achieve their objectives.

Given this reality, the more interesting question is what should Democrats do in response? One possible argument is that they should learn to “out-Republican” Republicans. While that might help Democrats gain power, it would almost certainly further weaken our civic institutions, increase the polarization of our society, and increase the likelihood that our experiment with self-governance will fail.

A better solution would be to push hard for workable strategies that counter these persistent abuses of power, while also strengthening institutions and enhancing the legitimacy of democratic processes. For example, pursuing statehood for Washington, D.C., and Puerto Rico can ensure that all Americans have the full benefits of citizenship. Mandating nonpartisan redistricting commissions can counteract the gerrymandering of legislative districts. Moving to a ranked choice voting system can help mitigate the risks of polarization. Eliminating the filibuster could enhance the responsiveness of the Senate to majoritarian interests. It is essential, however, that in doing this work, Democrats be creative, dogged, and principled in pursuing reforms that will truly strengthen our democracy and not just advantage their party.

If the Republicans choose to seat a new Supreme Court Justice prior to the 2020 Presidential election, and former Vice President Joe Biden then wins the election and Democrats take control of the Senate, the Democratic Party will have a unique and highly visible opportunity to take action to counteract this illegitimate use of power. One option, which many are already discussing, would be to “pack the Court.” The Constitution does not specify the number of justices who should be on the Court, so nothing would prevent Democratic majorities from expanding the Court to allow for a liberal majority.

While this might feel good, it would further politicize the Court and exacerbate the long-term structural governance problems we face. Better would be to use this opportunity to try something that could create both short-term fairness and long-term reform. As an example, a President Biden and a Democratic Senate could seek to restore legitimacy to the Court by (1) expanding its membership by eight for a limited period, say five years, (2) building the support needed to impose term limits of 18 years for all justices, and (3) creating a system for shrinking the Court back to nine justices, on a bipartisan basis, over the next five years. Under this approach, the immediate crisis could be mitigated and in 10 years the Court would be back to nine justices. Moreover, the imposition of reasonable term limits would provide a long-term structural reform that would help de-politicize the Court and the process for appointing new justices.

There is nothing inevitable about our system of governance. Even in the best of times, self-governance may be unsustainable. When, as now, one of the two major political parties continually bends or breaks the rules to impose its will to advance policies that greatly benefit the few at the expense of the many, it is hard to see why it should continue. If Democrats can win this election, they will have a unique opportunity not just to advance their policy priorities, but, perhaps more important, to use their power to impose democratic reforms that will restore fairness and legitimacy to our political system. Failure to seize this opportunity to stem the rising threat of autocracy, in favor of taking short-term political advantage, is not an option.

Andrew Foster is director of the Community Enterprise Clinic and director of Experiential Education and Clinical Programs at Duke University School of Law.

Duke University Opinion and Analysis

The official Medium publication of Duke University…

Duke University

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Duke University is home to nearly 15,000 undergraduate and graduate students and a world-class faculty helping to expand the frontiers of knowledge.

Duke University Opinion and Analysis

The official Medium publication of Duke University, offering analysis, opinion and insights from the Duke community.

Duke University

Written by

Duke University is home to nearly 15,000 undergraduate and graduate students and a world-class faculty helping to expand the frontiers of knowledge.

Duke University Opinion and Analysis

The official Medium publication of Duke University, offering analysis, opinion and insights from the Duke community.

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