Elie Mystal On Democrats And SCOTUS: 'There Is Only One Play'

By Aliza Worthington — September 20, 2020

Elie Mystal has been arguing for years that the Supreme Court of the United States needed more seats on it. He did it six months ago, in The Nation. Here he is talking about it in March 2019, in Above the Law. And here he is today, talking about it on AM Joy with Joy Reid, who graced us with her presence as host of her weekend show, which she'd handed off since heading to weeknight prime time months ago.

MYSTAL: There is only one play. The court is already illegitimate. I KNOW that, because Mitch McConnell has already decided that only Republicans get to nominate Supreme Court justices, right? We've already been through this with Merrick Garland, we've already seen that the Republicans are willing to change the number of justices on the Supreme Court when it suits them. Therefore the only acceptable answer for the Democrats to respond with, is by changing the number of justices, should Biden win the White House and the Democrats take back the Senate. That is the only play. That is the proportional response to the illegitimacy that Mitch McConnell himself has caused this institution. So, yes, we are going to reform the court if we take back the Senate and the White House. That NEEDS to happen.

I have a lot of arguments for why an expanded number of Supreme Court justices would be good for the institution in general. The Supreme Court should act more like the circuit courts, the courts of appeals. I think if we had more justices, and I'm not talking about two. I'm saying that if we had ten more justices, if we had 19-person Supreme Court, or a 21-person Supreme Court, what you would see is that these tragedies, the random wheel of death that happens on our Supreme Court should not trigger constitutional crises. It should not be political malpractice to not go to the mattresses every time a Supreme Court justice dies and your party happens to be out of power. The Supreme Court should have the power that it does, but the individual justices should not be as critical to the function of democracy as they are. And the way to address that is with having an expanded Supreme Court. So I can make every good-government, practical argument for why we need more justices. But the bottom line is that this is an illegitimate institution and it needs to be changed by the next Democratic administration.

Now, for some inexplicable reason, Benjamin Wittes disagreed with Mystal's point of view, here. I say inexplicable, because, well, he couldn't explain it. When Reid asked Wittes if he agreed with Mystal, he said, "No, though that threat of expansion might be enough to achieve the Democrats' goals."

"Okay, and???" the resulting silence seemed to say. Yet, Wittes did not explain why he disagreed, and what he disagreed with, despite the dead air time and the signature Elie Mystal Whut? face that followed. Finally, Reid came to his rescue with the parenting analogy that you cannot threaten a child with something you're not willing to follow through with, and Mystal agreed.

"Can't bluff," he said. Indeed, we cannot.

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