Opinion | The Supreme Court Is Slipping Away From Democrats

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As President Trump and the Senate majority leader, Mitch McConnell, set about securing a replacement for Justice Ruth Bader Ginsburg before the next presidential term, congressional Democrats are steeling themselves for a procedural battle that could shape the fate of the country — and the climate — for generations.

As my colleague David Leonhardt writes, any justice Mr. Trump nominates to the Supreme Court is likely to be a young conservative who could sit on the court for decades, potentially helping gut Obamacare and Roe v. Wade, outlaw affirmative action and overturn environmental legislation.

“If Leader McConnell and Senate Republicans move forward with this,” Senator Chuck Schumer, the Democratic leader, said, “then nothing is off the table.” But what options do the Democrats actually have, and which should they use? Here’s what people are saying.

Constitutional hardball just got harder

After the death of Justice Antonin Scalia in 2016, Mr. McConnell made the unprecedented decision to block President Barack Obama from naming a successor in the remaining 11 months of his term on the grounds that it was too close to an election. Many prominent Democrats, Mr. Obama among them, have called on Mr. McConnell to abide by that standard now, but he has argued that it no longer applies.

Attempts to shame the Republican Party into forfeiting its political advantage have predictably proved futile, but as the Times columnist Michelle Goldberg writes, Democrats have few other options: Holding only a 47-person minority, they would need at least three and very possibly four Republicans to break with their party. Two — Senator Lisa Murkowski of Alaska and Senator Susan Collins of Maine — have said they would oppose voting for a nominee at least until the election is decided, but Mr. McConnell already seems to have the votes he needs.

“It’s doubtful that three Republican senators would show such civic decency, but we should still use every tool at our disposal to demand it of them,” Ms. Goldberg writes. “Outraged people should take to the streets en masse. Democrats in the Senate may not be able to stop Republicans from shoving a nominee through before the election or during a lame-duck session, but if it happens they should do all in their power to grind Senate business to a halt.”

How? In The Times, Adam Jentleson, a former deputy chief of staff for Senator Harry Reid of Nevada, lays out the range of tools available:

Denying unanimous consent. The Senate operates on “unanimous consent” agreements that set the daily schedule and terms of conduct. By systematically denying this consent, which would require only a single senator’s objection, Democrats could hold up the confirmation process.

Quorum calls. The Senate needs a quorum of 51 senators to operate. While there are 53 Republican senators, bringing 51 of them to the floor can be difficult, since many of them are busy campaigning in competitive races. By noting the absence of a quorum in a “quorum call,” a Democratic senator can freeze the Senate until 51 senators arrive on the floor.

Boycott confirmation hearings. The hearings are unlikely to affect the outcome of the nomination, but Mr. Jentleson argues that attending them at all would lend the proceedings an air of normalcy.

Together, Mr. Jentleson says, these tactics can slow and delegitimize the confirmation process. “This is a dark time for Democrats, but it has the potential to be clarifying,” he writes. “The Senate is awash in myths and misconceptions about norms and traditions, most of which were invented to serve narrow political interests. Republicans’ naked hypocrisy will reveal that much of what senators assure us is grand Senate tradition is just hardball politics.”

The House of Representatives may play a role as well. Speaker Nancy Pelosi said this weekend that the impending nomination fight “requires us to use every arrow in our quiver.” But what those are remain to be seen: Ms. Pelosi said that Democrats have no interesting in shutting down the government, and even impeaching the president or the attorney general might not slow the Senate down.

How should Biden campaign on the court?

Justice Ginsburg’s death has added another dimension of urgency to the presidential election, potentially shifting the focus of the race from Mr. Trump’s handling of the coronavirus to issues like gun control and abortion rights.

For that reason, Anne Appelbaum argues in The Atlantic that Joe Biden should avoid making the Supreme Court a central issue of his campaign, as hard as that may be. “Fixating on the court organizes the electorate along two fronts of a culture war, and forces people to make stark ideological choices,” she writes. “Americans who define themselves as ‘pro-life’ or as socially conservative might consider voting for Joe Biden if the issue at stake is the botched pandemic response. If the issue is conservative judges versus liberal judges, then they may stick with the Republicans.”

Yet Ms. Appelbaum also notes that the Supreme Court’s newfound relevance has galvanized Democratic voters, who shattered previous fund-raising records in the hours following Justice Ginsburg’s death.

“This is evidence, Democrats say, that the conventional wisdom that Democratic voters are not as motivated by the judicial branch as Republicans is wrong,” Lissandra Villa reports for Time. “Recent surveys indicate Supreme Court nominations may be more important to Democratic voters than Republicans — perhaps because they’ve watched the court slipping away from them during the Trump administration.”

The stakes of the court’s rightward shift are especially high for abortion rights. During Mr. Trump’s presidency, abortions have become harder to obtain in many places across the country — more difficult than at any time since they were legalized nationwide nearly 50 years ago. Ilyse Hogue, president of Naral Pro-Choice America, told The Times that for Democratic and independent voters, abortion rights are “a really important symbol of women’s place in society at a time now when women feel like we are being attacked and denigrated.” She added, “If you are looking at this activated base of women who were already politically engaged, I do see this new fervor.”

But for now, the Biden campaign has signaled that it will concentrate primarily on protecting the Affordable Care Act, whose constitutionality will be litigated before the Supreme Court in a case set to begin shortly after Election Day. Aides told The Times that Mr. Biden will continue to accuse the president of trying to eliminate the law’s protections for pre-existing conditions during a pandemic, a popular policy whose standing has become even more precarious in Justice Ginsburg’s absence.

If Trump fills the seat, should Democrats try to pack the court?

Faced with the prospect of a third Trump Supreme Court appointee, some prominent Democrats in Congress have raised the possibility of expanding the judiciary. While the Supreme Court has had nine justices for over a century, the Constitution does not mandate that number, and Congress changed the size of the court several times before the Civil War. If the Democrats manage to take back the White House and the Senate in November, Congress could do so again.

The contention this idea is already breeding cuts to the core of a longstanding debate in American politics: How much power should the courts hold? As the Times columnist Jamelle Bouie notes, the Supreme Court’s power to interpret the Constitution and establish its meaning does not explicitly derive from the Constitution, and its importance is unusual by international standards. Among the countless critics of judicial supremacy were Thomas Jefferson and Abraham Lincoln, who felt that it constituted an intolerable infringement of democratic self-rule.

“At no point in the last 20 years have the majority of Americans voted to give conservative jurists unchecked power to interpret the Constitution,” Mr. Bouie writes. “The United States may not be a ‘pure democracy,’ but it’s not a judgeocracy either, and if protecting the right of the people to govern for themselves means curbing judicial power and the Supreme Court’s claim to judicial supremacy, then Democrats should act without hesitation.”

[Related: “If the McConnell Rule Is Dead, Court-Packing Is Permitted”]

But as Mary Ziegler argues in The Atlantic, expanding the court carries an obvious risk. “If Democrats pack the court, Republicans will assuredly do the same the first chance they get,” she writes. “Each election would trigger a new debate about how big the court should be to get the ‘right’ result.”

In part for that reason, the law professors Samuel Moyn and Ryan Doerfler argue that Democrats should consider an altogether different kind of reform: Instead of trying to tinker with who wields the extraordinary power of the Supreme Court, they should be aiming to restrict it. Abrogating the court’s authority to declare laws unconstitutional or simply ignoring it, as Andrew Jackson and Abraham Lincoln did, would be one means to that end.

But Dr. Moyn and Dr. Doerfler offer a more benign proposal: require six or seven justices, rather than the current five, to agree before declaring a federal law unconstitutional. Such a supermajority requirement would have no inherent partisan benefit, they argue, but it would result in a “mutual judicial disarmament” that lowers the stakes of court appointments, transferring power to the more democratically accountable branches while still allowing the court to act in cases of flagrant constitutional violation.

“Legislative power is the sole means of political reform of the country,” they write. “And even if creating a progressive coalition takes time and work, forcing ourselves to come to terms with one another as fellow citizens is a better choice than inviting a judiciary to do the job of democracy, and packing our energies into debating which judges should determine our common fate.”

Do you have a point of view we missed? Email us at [email protected]. Please note your name, age and location in your response, which may be included in the next newsletter.


“The Great Liberal Reckoning Has Begun” [The Atlantic]

“How Abraham Lincoln Fought the Supreme Court” [Jacobin]

“There Are No Principles” [Slate]

“Ginsburg’s death highlights unhealthy centrality of U.S. Supreme Court” [The Irish Times]

“Supreme Court fight highlights the new political reality: America under minority rule” [The Washington Post]

“How the Religious Right Has Transformed the Supreme Court” [The New York Times]


Here’s what readers had to say about the last edition: Trump’s latest Middle East diplomatic deal.

Patricia from Ireland: “I visited Gaza 30 years ago and it was memorably awful. I believe it is now hundreds of times worse. To be born and brought up in those conditions of deprivation and oppression builds armies of opposition to Israel, and to Middle East stability. Your article looked at the macro dynamics of the relationships but without reference to the micro, it lacks depth.”

Greg from France: “The current publicity campaign regarding the deals with the U.A.E. and Bahrain is simply a step in the much larger plan to implement the Kushner-Netanayhu so-called Deal of the Century. This part of the plan is an orchestrated propaganda effort to convince as many readers and listeners as possible that the Arab world is abandoning the Palestinian cause, that the Palestinians are rapidly running out of time to salvage anything, and that the Palestinians therefore must now get serious about the Kushner-Netanyahu proposed so-called deal.”

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