October 15, 2020

Democrats must expand and reform the courts as one of their first orders of business if they win back the Senate and White House. This has to be non-negotiable.

I don't write things like that very often but this has to be an imperative and the Beltway media needs to quit making it sound like it's some sort of norm-shattering mortal legislative sin.

Especially given how many norm-shattering mortal legislative acts have been committed by the self-anointed Grim Reaper Mitch McConnell himself. In the words of Sheldon Whitehouse above to Republicans: "Don't think that when you have established the rule of 'because we can,' that should the shoe be on the other foot, you will have any credibility."

Lawyer, all around smart person, and great analyst Elie Mystal laid out the case in The Nation:

It’s essential to remember that the reason Republicans have long sought to control the courts is that they serve as an antidemocratic check on the liberal agenda—and not just for an election cycle but for a whole generation. There’s not a single Democratic law or program that a court controlled 6-3 by conservative justices cannot frustrate or block. A Republican-appointed court will smack down voting rights legislation, gun reform legislation, climate change protections, LGBTQ rights, and abortion rights. It will nullify the Affordable Care Act and block the merest whiff of a public option or Medicare for All. Republicans wanted the court as a hedge against their waning popular support, and now they have it.

The obvious—and only—solution to this Republican power grab is for Democrats to expand the number of justices on the Supreme Court.

The argument for court expansion is often presented as retribution for Republicans messing with the court, first by blocking the nomination of Merrick Garland, now by rushing the appointment of Ruth Bader Ginsburg’s successor. But there is a higher purpose for court expansion, one that goes beyond avenging Ginsburg and Garland. Expanding the court now—through raw political power, if necessary—is the best way to reform and depoliticize the court for future generations. Expanding the court is the way to save it. It’s a lot like breaking a bone to reset the leg.

Media is trying to make this a negative issue, framing it in a dishonest right wing frame called "packing the courts."

This is not that. This is long-needed court reform, which would include forcing SCOTUS to adhere to the same Code of Ethics as lower appellate courts, opening up financial disclosures, expanding the circuit courts to better serve a far larger public and yes, expanding the Supreme Court by adding seats to it.

If this doesn't happen, nothing else matters. Don't let media use this as a gotcha. It's well past time to take this political lever away and make the courts what they are supposed to be: an apolitical body interpreting the law and the constitution.

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