If the next few weeks go according to Mitch McConnell’s plans, Donald Trump will accomplish something few presidents have ever done in United States history: nominate three justices to the Supreme Court in a single term. Pretty good for a president who neither won a majority of the nation’s voters (he won 46.1% of the popular vote) nor a plurality of the electorate (Hillary Clinton received 48.2% of the popular vote). And one who received a considerable boost from Russian president Vladimir Putin and American FBI director Jim Comey.
Without a mandate from the American people, Trump has reshaped the high court that will make decisions about the people’s healthcare access, civil rights, election laws, tax policies, voting rights, employment laws, abortion rights, governmental transparency, climate policies, marriage rights, law enforcement policies, first amendment rights and more for longer than this writer (and you, dear reader) will live.
In short, this is a really big deal.
Congressional Democrats as well as Democratic organizers, operatives and voters seem to sense the inevitability of this moment. Barring an act of God or a once-in-a-republic act of the people, the worst calendar year in modern American history will end with a 6–3 conservative majority on the SCOTUS.
And so, Democratic hearts and minds have wisely turned to what’s next. What comes after 2020, or more practically, what comes after the November 3rd election that will likely put the presidency and possibly put the Senate in Democratic hands. Much ado has been made about expanding the Supreme Court and packing it with liberal justices. In normal times, this would be widely panned as a knee jerk reaction to unfavorable outcomes, but these are far from normal times and the unfavorable outcomes that have led to this moment were not birthed from the will of the people, rather the tyranny of the minority. Indeed, the case for expanding the court is strong:
- If Trump secures a third nominee this year, the last five conservative justices will have been nominated by presidents who did not ascend to the presidency having won the popular vote and securing the mandate of the American people (2020 Nominee, Kavanaugh, Gorsuch, Alito, Roberts). A strong case can be made that — since the majority of the people did not elevate Trump or George W. Bush to the presidency; they did not want them to name five of the nine lifelong appointments to the high court either.
- On March 16, 2016, President Barack Obama nominated Merrick Garland to fill an open SCOTUS seat. His nomination languished without a Senate confirmation vote until — well, actually until this very day. According to Article II, Section 2, Clause 2 of the US Constitution, the US Senate has, not only a right to advice and consent of the nominee, but a responsibility of advice and consent of the nominee. The Republican Senate majority would have been well within its right to vote down Garland for the open SCOTUS seat, but in providing no confirmation hearing or vote at all, the Senate abdicated its constitutional obligation. The senators don’t ever have to vote yes; but not to vote at all is flagrant, irresponsible and unfitting for the soberness and seriousness of the assignment.
- Not only have the last two Republican presidents been elected without the support of the majority of the country, likewise the 53 Republican senators who control the upper chamber do not enjoy majority support of the American people. The disparity is striking. The 53 Republican senators represent 158 million Americans. The 47 Democratic senators represent 169 million citizens. The majority of the people are represented by the minority of the senators. The majority of the senators have a stranglehold on the will of the majority. Consider these statistics:
- 60% of Americans prefer bans on assault weapons
- 77% of Americans believe SCOTUS should uphold Roe v. Wade; 13% believe it should be overturned
- 62% of Americans believe the current SCOTUS vacancy should be filled by the winner of the 2020 presidential election
- 53% of Americans want the ACA upheld by SCOTUS; 38% want it overturned
- 58% of Americans believe policing needs major reforms; only 6% believe none are needed
Each of these issues will be raised both in the US Senate and the SCOTUS in years to come. The will of the people will have little to no bearing on the legislative and judicial outcomes. Abraham Lincoln said, “government of the people, by the people, for the people, shall not perish from the earth.” He was wrong; it can and it will — in fact it is, right before our eyes. The American government is one where the people no longer have their say.
- The current state of minority rule calls into question the legitimacy of government overall. Consider these words from the Preamble to the Declaration of Independence (emphasis added):
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
The Senate’s power — and the president’s and the Supreme Court’s — is derived from the consent of the governed, the voters, the citizenry. Whenever this is no longer the case — it is the RIGHT OF THE PEOPLE to alter or abolish it. Expanding the court is a way to alter — to protect us all from the more extreme option of abolishing.
- In addition to the numerical minority of the Senate majority, it also represents an increasing minority of thought, faith, race, ethnicity and lived experiences. Consider this from the Washington Post:
At some point, our system (if it does not already) will lack democratic legitimacy. Consider the very real possibility of yet another election that skirts the popular vote, decided by a Supreme Court dominated by justices who themselves were nominated by men who became president without a majority vote and confirmed by a Senate majority that has drifted further from a representative cross-section of voters…..Trump and the Republican Senate majority were put in place by “states with few immigrants, more White Christians and relatively fewer college graduates……The question is not whether the system is designed that way; it is whether it is tenable in the 21st century to have a Senate dominated by overwhelmingly small White states, a Supreme Court that is entirely untethered to popular will and a president without a popular majority.
- Minority rule in this country is advanced by sophisticated and intricate systems of voter suppression. In the United States, there is virtually no such thing as voter fraud and absolutely no large scale or systematic voter fraud. It is not even a myth. It is a lie perpetuated by the minority to exclude voters who likely would not support them from the electoral process. It is the foundation of minority rule and it is diabolical, insidious and sinister. Voter suppression is manifest in the war on vote-by-mail, the rabid demand for voter ID, and the refusal of state legislators to allow former felons to vote, even when the voters say they can and should. SC Republican Lindsay Graham admitted as much in 2012, “The demographics race we’re losing badly. We’re not generating enough angry White guys to stay in business for the long term.” This is perhaps the most truthful statement Graham ever made. There are not enough angry White guys to maintain minority rule indefinitely. Voter suppression must be employed in tandem to ensure enough of their voters and not enough of the other side’s voters — the majority — get to the polls.
If expanding the Supreme Court seems like a big step, that’s because it is. It is a huge step and, like every major democratic reform carries unintended consequences. However, the nation owes it to the founders to protect the power derived from the consent of the governed and, failing that, to alter or abolish that government whenever its legitimacy is lost.