Expanding the Court Is Now or Never
Supporters of Donald Trump assaulted the Capitol on January 6, 2021, but American democracy has been under siege for far longer—from both former President Trump and the Republican Party. Trump’s transgressions against democracy are well known: They include having attacked the press as the “enemy of the people,” assailed sitting judges, politicized the Justice Department and the intelligence agencies, undermined transparency in government, encouraged political violence, and delegitimized elections.
The Republican Party’s undermining of democracy began much earlier. Since about 2000, the party has tried to suppress Democratic votes through stringent voter-identification laws and purges of voter rolls. In addition, Republican legislatures have grotesquely gerrymandered legislative districts, enabling Republicans to maintain control of state legislatures and, at times, the House of Representatives, while failing to win majorities of the vote. Republicans have also erected obstacles to college students’ voting, delayed elections that they anticipated they would lose, and eviscerated the powers of Democratic governors. Republican state legislators have also rejected the results of voter initiatives and imposed obstacles to putting such initiatives on the ballot in the first place.
In 2020, Democrats overcame such hurdles and won control of Congress and the presidency. One of their first legislative initiatives will be a wide-ranging measure to protect the right to vote, end legislative gerrymandering, reduce the influence of money in politics, and secure other democratic reforms. However, because of a combination of structural advantages Republicans have enjoyed in the Senate and the Electoral College, and because of Senator Mitch McConnell’s Machiavellian stratagems to pack the Supreme Court, this and other Democratic reform efforts remain potentially vulnerable to a constitutional veto from today’s Republican-sympathizing Supreme Court. Unless Democrats expand the size of the Court, small-d democratic reform will be doomed before it even begins. They must do this now, as they are unlikely to have another chance.
Two factors account for the recent Republican Party assault on democracy. First, the national electorate today is more evenly divided than it was for much of the past century; suppressing a few thousand votes here and there can alter the results of elections that have enormous political consequences. Second, dramatic demographic changes, together with growing secularization and social liberalism, have led Republicans to conclude that their political agenda no longer commands majority support. Recognizing that their party performs better when voter turnout decreases, Republicans have chosen to shrink the electorate rather than alter their party’s agenda to make it more popular.
At the same time, Democrats suffer today from several structural features of the American political system that permit minority rule. At the state-legislative and congressional levels, Democrats are disadvantaged by a combination of partisan gerrymandering and geographic clustering that often disables them from converting a majority of votes into a majority of legislative seats. For example, although Democrats in Pennsylvania and Ohio frequently win statewide elections, they have been unable to control either state’s senate for nearly the past four decades because Democratic voters are inefficiently concentrated in and around large cities. These same dynamics shape the congressional delegations such states send to Washington. For example, after recent decennial redistricting, Republicans have won 13 of 18 Pennsylvania congressional seats despite winning only about half of the state’s congressional vote. On average, these factors have cost Democrats a couple dozen congressional seats in recent elections.
Democrats are even more disadvantaged in the competition for control of the U.S. Senate. Because of a provision in the Constitution that cannot be amended without the consent of every state, Wyoming, with just over 600,000 residents, and California, with nearly 40 million, are each allocated two senators. Equal state representation in the Senate, which was difficult to justify in 1787, is impossible to reconcile today with the principle of one person, one vote. Today’s partisan geography, which features a stark divide between the political preferences of urban and rural voters, greatly benefits the Republican Party. For example, in 2021, the 50 Democratic senators represent about 40 million more voters than the 50 Republican senators. This is an outrage to democracy.
Lastly, the Electoral College, coupled with another feature of today’s partisan geography—the relatively high concentration of white working-class voters in several narrowly divided states, such as Pennsylvania, Michigan, and Wisconsin—significantly advantages Republican presidential candidates. Although Democrats have now won the popular vote in seven of the past eight presidential elections, they have won the Electoral College only five times. On the eve of the 2020 election, while Trump had only about a 3 percent chance of winning the popular vote, he still had a 10 percent chance of winning an Electoral College majority. Though Joe Biden won 7 million more popular votes than Trump, had fewer than 43,000 voters in three key states—Arizona, Georgia, and Nevada—switched sides, the result would have been an Electoral College tie and a virtually certain Trump victory in the House of Representatives.
These democratic deficits in the Senate and the Electoral College have enabled Republicans to dominate the Supreme Court, despite winning the support of a diminishing minority of voters. Presidents George W. Bush and Donald Trump, neither of whom initially entered the White House with even a plurality of the popular vote, together appointed five justices who are on the Court today—a majority. Four of those justices were confirmed by narrow majorities of Republican senators who did not represent a majority of the American people. If the Senate and the Electoral College were more reflective of majority will, today’s Supreme Court would look dramatically different. It could not possibly have become the most conservative Court in the past hundred years, as several academic studies have demonstrated it to be.
With their majority on the Court, the Republican justices have undermined labor unions, unleashed money in politics, protected corporations from class-action litigation and punitive-damage awards, curbed antitrust law, eroded the constitutional right to abortion, invalidated gun-control measures, struck down voluntary efforts by school boards to achieve integration through race-conscious means, and threatened to abolish race-based affirmative action. (Referring to justices as “conservative” or “Republican-appointed”—or “liberal” or “Democratic-appointed”—is conventional but this obscures the reality that in today’s ultra-polarized environment, the justices’ voting patterns display fairly consistent partisan preferences, not simply political ideologies. Given this pattern, I will refer to them as either “Republican justices” or “Democratic justices,” as that is what they are.)
Much as the Republican justices have generally promoted the policies favored by the Republican Party in other areas, so have they facilitated the Republican Party’s assault on democracy. In 2013, they effectively nullified the preclearance provision of the 1965 Voting Rights Act, which required mostly southern states to submit proposed changes to their voting practices to the federal government for advance approval in order to ensure the absence of a discriminatory racial purpose or a disparate racial impact. Republican justices have also upheld strict voter-identification laws and purges of voter rolls on the basis of the state’s interest in reducing voter fraud, despite numerous studies demonstrating that voter fraud is essentially nonexistent. In 2019, these justices refused to remedy the problem of partisan gerrymandering, which today mostly benefits Republicans. They have also let loose a virtually unrestricted flow of money into politics on the basis of contrived constitutional rationales, which disproportionately benefits wealthy donors, corporations, and well-funded interest groups. Rather than defending democracy, the Court under Republican control has become another engine of democratic degradation.
The run-up to the 2020 election demonstrated how far Republican officeholders are prepared to go in suppressing votes to win elections, and the extent to which Republican justices are willing to accommodate such efforts. Across the nation, Republican politicians sought to make voting harder during a once-in-a-lifetime pandemic: refusing in some states to expand excuse-based absentee balloting, restricting the availability of drop boxes to collect absentee ballots, declining to relax witness-signature requirements for absentee ballots, and disallowing the counting of absentee ballots postmarked but not received by Election Day.
Rejecting challenges to such actions by Republican politicians, the Republican justices invoked a principle that forbids federal courts to make election changes close to Election Day. Even during a historic pandemic, the justices reasoned, elected officials are best situated to weigh the costs and benefits of changing election rules. That approach makes sense—assuming that the elected officials are acting in good faith, rather than simply seeking political advantage for their side. Only by pretending that Republican officeholders were not deliberately seeking to reduce turnout by Democratic-leaning constituencies could Republican justices plausibly have claimed to be deciding voting-rights challenges according to “neutral principles” of law.
Had the results of the 2020 presidential election been a little bit tighter, legal challenges to late-arriving absentee ballots or to such ballots lacking clearly matching signatures might have determined its outcome. Prior to the election, Trump insisted that the Senate quickly confirm his nomination of Judge Amy Coney Barrett so that the Court would have its full complement of (Republican) justices to resolve any such challenges. The Court’s 2000 ruling in Bush v. Gore showed us that a Republican-majority Court would rule in favor of a Republican presidential candidate on the most minimally plausible of legal rationales. (Trump’s legal challenges to the 2020 election result were, thankfully, not even minimally plausible.) Democrats cannot run the risk of future elections being conducted under the watchful eye of Republican justices who have already demonstrated their disinclination to defend democracy in general or the right to vote in particular in the run-up to the most consequential presidential election since 1860.
Despite the best efforts of Republicans, the 2020 election results have afforded Democrats their second opportunity in 50 years to control the Supreme Court. The first chance came in February 2016, when Justice Antonin Scalia died suddenly during Barack Obama’s presidency. For a moment, Democrats seemed likely to finally secure the Supreme Court majority that the structural biases of the Senate and the Electoral College had long prevented. But Senate Majority Leader McConnell blocked that Democratic opportunity, stealing a Supreme Court seat for the first time in American history. McConnell insisted that historical precedent supported leaving Supreme Court vacancies unfulfilled during presidential-election years, but this was a lie. Never before had a Senate controlled by one party blocked a Court nominee selected by the president of another party simply because the vacancy occurred during a presidential election year. In 2020, McConnell confirmed his hypocrisy by ensuring that the Senate confirmed the nomination of Barrett—just eight days before the election.
Now in power, Democrats must work to remedy the antidemocratic tilt of the American political system. Doing so directly—by, say, ridding the country of the Electoral College or reapportioning the Senate according to population—is virtually impossible, though proposals for work-arounds, such as adding more states to the union and enacting the National Popular Vote Interstate Compact, do exist and should be pursued. Constitutional amendments would be required to fundamentally alter these institutions, and amendments are practically unattainable when one of the two major political parties benefits from the status quo.
Reforming the Supreme Court to undo its anti-Democratic bias, however, does not require a constitutional amendment; the size of the Court is set by statute, not the Constitution. Congress altered the Court’s size seven times in the 19th century (though not since 1869)—and sometimes for reasons that amounted to nothing more than raw partisanship. In 2021, Democrats have far greater justification. They should expand the Court by four seats to provide a center-left country with a center-left Court. Such a Court would, importantly, ensure the constitutionality of Democratic measures to expand access to health care, deal with gun violence, address human-caused climate change, and more fairly distribute the nation’s tax burden. But even more crucial, such a Court would not threaten Democratic attempts to undo the Republican Party’s recent efforts to undermine democracy through voter suppression and other electoral machinations.
The principal argument against Democrats’ expanding the Court is that Republicans will simply respond in kind the next time they have the opportunity to do so, inciting a never-ending retaliatory spiral. However, there are three powerful responses to this argument.
First, Republicans initiated this arms race by stealing the Court vacancy that was rightfully Obama’s to fill in 2016. For Democrats to refrain from responding in kind would be to disarm unilaterally. As game theorists have shown, the quickest way to restore a stable equilibrium after one party in a reiterative game has repudiated a cooperative norm is to retaliate in kind. Failing to do so incentivizes only more of the norm-breaking behavior.
Second, Republicans themselves will almost surely enlarge the size of the Court the first time they have the opportunity and see the need to do so. Suppose that Democrats refrain from expanding the Court in 2021–22. Next, imagine that two Republican justices are tragically killed in an automobile accident, and President Biden and the Democratic Senate replace them with two Democratic justices, restoring Democrats to the five-to-four majority they ought to have enjoyed after Scalia’s death. Now suppose that, in 2024, a Republican is elected president and Republicans win control of Congress.
Does anyone doubt that Senate Majority Leader McConnell would pursue Court expansion? His argument for doing so would be precisely the same as his argument last October for confirming Barrett: Republicans had the power to do it, and nothing in the Constitution prohibited them from doing it. He might even add a line similar to the one he used in 2016 when blocking the confirmation of Judge Merrick Garland: Democrats would have done the same thing if they were in his position (after all, they had talked about expanding the size of the Court in 2021), so he would have to be a fool not to do so.
Expanding the Court is a form of “political hardball”—defined as defying norms and traditions without violating the letter of the law—which Republicans have excelled at playing over the past decade or so. In addition to blocking the Garland nomination, McConnell prevented Obama from filling dozens of court-of-appeals vacancies during his last two years in office; used the filibuster nearly as many times in his eight years as minority leader as it had been used in the previous 100 years; disabled some federal agencies by refusing to confirm Obama’s nominees to head them; and ensured that the 2009 stimulus package in response to the Great Recession secured almost no Republican support in the Senate. This is equivalent to Democrats’ hypothetically blocking a coronavirus relief package last spring to hinder Trump’s reelection prospects—a step that not a single Democrat publicly advocated taking. In addition, at the state level, Republicans have recently packed the supreme courts of Arizona and Georgia, attempted to do so in North Carolina, and threatened to do so in Florida.
For Democrats to expand the Court in 2021 would, as with McConnell’s machinations, violate no constitutional rule, and McConnell almost certainly would do the same thing were he in their shoes. One of the most difficult tactical questions in contemporary politics is how to respond when members of the other party play hardball. In general, Democrats should not play the game simply because Republicans played it first. It is morally reprehensible that Republicans suppress the votes of Democratic-leaning constituencies, ignore the results of popular referenda they disfavor, eviscerate the powers of Democratic governors, and seek to overturn the results of presidential elections on the basis of unsubstantiated allegations of fraud and wild conspiracy theories. Democrats should do none of these things. And yet, it cannot be a persuasive argument against Democrats’ expanding the Court that Republicans will simply retaliate in kind one day: Republicans have amply demonstrated that they will break the norm against Court expansion when they see the advantage in doing so, regardless of what Democrats do now.
The third response to the “retaliatory cycle” concern is that Democratic expansion of the Court could facilitate a new political epoch by defeating the Republicans’ antidemocratic tactics, and thus forcing the GOP to compete on a more even playing field. In this altered political environment, the unpopularity of the Republican Party’s agenda—appeals to racial and religious resentment and xenophobia, combined with neo–Ayn Randian economic policies such as tax cuts for the wealthy, economic deregulation, and environmental degradation—will cause the party to lose elections consistently. That has not happened to date because of the democratic deficits in American political institutions and widespread Republican voter suppression and other electoral machinations. A series of electoral defeats might lead the Republican Party to enact a platform more appealing to today’s median voter, abandon practices of voter suppression, and perhaps even acknowledge its malfeasance in stealing a Court seat in 2016. This scenario may seem Panglossian, but the United States has periodically experienced such tectonic shifts in politics— most notably, beginning in 1896, 1932, and 1968—in which one party’s political dominance for decades eventually led the other to reform itself in order to expand its appeal. We should want this new epoch, not because it benefits Democrats, but because it benefits democracy.
However, creating a new political epoch requires entrenching democracy. One of the first reform measures now that Democrats have taken control of Congress must involve protecting and expanding access to the ballot. Voter registration should be automatic when citizens turn 18, and easy for older citizens. Same-day registration enhances turnout without increasing fraud, despite what Republicans baselessly charge. Felony disenfranchisement, which has enormous, racially disparate effects and in many cases was instituted long ago to that exact end, should be terminated. Election Day should be made a national holiday. The number of early-voting days, polling places, and voting machines should be increased, to stop the national disgrace of forcing working-class Black Americans in Atlanta and elsewhere to wait in lines for as long as five to 10 hours to vote. Absentee ballots should be available without excuse. Onerous identification requirements for voting should be eliminated because they reduce turnout on the pretext of reducing fraud. Partisan gerrymandering has no plausible justification and should be ended.
Yet a Republican-controlled Court could easily invalidate such democracy-entrenching legislation, at least insofar as it applied to state and presidential elections, on the basis of contrived federalism rationales already developed and implemented by Republican justices. Those same justices could conceivably do the same to most other Biden-administration reform measures. All of this is to say that Court reform is a prerequisite to entrenching democracy. The Democrats must do it, or forgo any hope of implementing much of their reform agenda.
The real question confronting Democrats is not whether to expand the Court but when to do so. Some commentators have suggested that Court reform be held in abeyance as a sword of Damocles hanging over the Court, to be implemented only if Republican justices overplay their hand. Two arguments counsel against Democrats’ waiting.
First, Democrats may lose control of either or both houses of Congress in 2022 or even earlier, should a Democratic senator from a state with a Republican governor become seriously ill or die. Voter turnout can decline as much as 50 percent in midterm contests, when the electorate is far less demographically representative of the country as a whole. For example, after Democrats won landslide victories across the board in 2008, Republicans seized control of the House in 2010—less because of the unpopularity of Obama’s agenda than because of the radically different composition of the off-year electorate and the decision of Republican congressional leaders to sabotage economic recovery and hope voters blamed the president.
Although 2022 presents a relatively favorable slate of Senate contests for Democrats, the party’s long-term chances of Senate control are very likely to deteriorate over time. Consider that in 2016, when Hillary Clinton won the national popular vote by two percentage points, Trump won the popular vote in 30 states. In addition, for the first time since the direct election of U.S. senators began in 1914, every Senate contest in 2016 was won by the candidate of the party that also won that state’s Electoral College votes; the same was true in 2020, with the sole exception of the Maine Senate race. Similarly, in 2012, when Obama won the national popular vote by four percentage points, his Republican opponent, Mitt Romney, won the popular vote in the 25 least populous states by six percentage points—suggesting that the ideological preferences of voters in the median Senate seat are significantly more conservative than those of the median American voter. Given a combination of Senate malapportionment, current partisan geography, and the nationalization of Senate contests, Republicans enjoy a large presumptive advantage in the battle for future control of the Senate.
The Senate scenario is on track to worsen for Democrats in the years ahead. Demographers predict that by 2040, 70 percent of the U.S. population will live in just 15 states. In other words, the remaining 30 percent of the population will choose 70 percent of the Senate. Assuming that current partisan geography persists—i.e., low population density translates into disproportionately Republican vote shares—then Democrats may not have a realistic chance of ever winning Senate control after the next couple of electoral cycles.
The other reason not to wait to expand the Court until Republican justices overplay their hand is that they can and will act strategically to avoid the appearance of excessive partisanship. Chief Justice John Roberts has already demonstrated an inclination and capacity to cast the occasional strategic vote against ideological and partisan interest to enable liberal victories in highly salient cases and thus protect the Court from political retaliation. Such instances include Roberts’s crucial last-minute vote switch to uphold the Affordable Care Act in 2012, his vote in 2019 to exclude the citizenship question from the 2020 census form, and his votes in 2020 to invalidate the administration’s rescission of Deferred Action for Childhood Arrivals and to invalidate a restrictive Louisiana abortion statute. Roberts would need only one ally among the other five Republican justices to ensure that the Court refrains from rendering decisions likely to incite Democrats to expand the Court—until Democrats no longer fully control the federal government, at which point it will be too late.
So don’t walk; run. Reforming the Court should not be the No. 1 priority of the Biden administration and the new Democratic Congress—they need to pass COVID-19 relief and voting-rights reform measures first—but it should be high on their list. Court reform is imperative to the preservation of American democracy. If Democrats fail to enact such reform now, they may not get another chance.