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How Court Packing Can Protect the Election—and Democracy

Democrats contemplate court packing.
People gather at the Supreme Court on the morning after the death of Justice Ruth Bader Ginsburg, 87, Saturday, Sept. 19, 2020 in Washington. (AP Photo/J. Scott Applewhite)

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Democrats contemplate court packing.
People gather at the Supreme Court on the morning after the death of Justice Ruth Bader Ginsburg, 87, Saturday, Sept. 19, 2020 in Washington. (AP Photo/J. Scott Applewhite)

Justice Ruth Bader Ginsurg’s death Friday night has set off one high-profile, high-stakes fight and elevated the importance of another less widely recognized struggle. Both will have the potential to reshape America for decades to come. And both are likely to end in tragedy if Democrats don’t support expanding the Supreme Court.

As everyone surely knows by now, Donald Trump, Mitch McConnell, and the Republican Party have vowed to fill Ginsburg’s seat this year, even after they refused to allow President Obama to fill a Supreme Court vacancy in 2016 on the dishonest pretext that it would be improper to fill a vacancy that arises in an election year. McConnell and the GOP can’t be shamed into sticking to the principles they stated in 2016, because they were never really principles at all—it was just a naked power grab, an unprecedented theft of a Supreme Court seat. There’s value in reminding the public of the inconsistency in the GOP’s actions then and now—it’s an important illustration of the fact that the Republican Party will do anything to accumulate power. 

But actually preventing Republicans from filling the seat requires much more—they must be made to believe that rushing a right-wing justice on to the Court in the next few weeks will hurt them electorally, and to no end, because their deed will be quickly undone. The only thing Republicans care about is their own power, and they must see that illegitimately filling this Supreme Court vacancy would reduce, not enhance, their power.

On the electoral front, the tidal wave of donations to Democratic candidates in the wake of Ginsburg’s death is a sign of just how mobilizing the threat of an illegitimate, 6-3 Republican court is. That energy must be sustained, and directed at vulnerable Republican Senate candidates—and not just the usual suspects like Sens. Susan Collins (R-ME) and Joni Ernst (R-IA), but people like Sen. Dan Sullivan (R-AK), running for re-election in a state where the difference between winning and losing will be just a few thousand votes, and campaign contributions go a long way. 

But that isn’t enough. Many Republican Senators might make the calculation that it’s worth losing the Senate majority in exchange for gaining a 6-3 stranglehold on the Supreme Court—particularly since the GOP’s natural advantage in Senate races means they likely won’t be in the minority for long. That’s where the threat of structural reform comes in.

Republicans must understand that if they illegitimately fill this Supreme Court seat and then Democrats win control of the White House and Senate, they will immediately expand the Court and add several new liberal justices to it. That’s the proportionate, legitimate response to the GOP’s illegitimate power grab. Democrats from Senate Minority Leader Chuck Schumer to House Judiciary Committee Chairman Jerry Nadler have already issued warnings. These warnings must be sustained. For decades, Republicans have believed—not without justification—that they can get away with all power grabs, no matter how ruthless, free from fear of meaningful retaliation. Democrats must make them understand that the era of capitulation is over.

So that’s the obvious problem. The less visible problem, which just got much bigger, is that the Supreme Court will likely have multiple opportunities to influence the outcome of this year’s presidential election, and conservatives now hold a 5-3 majority. Conservatives on the Supreme Court could even put their thumbs on the scales of justice and hand the presidency to Donald Trump.

Scratch that: Conservatives on the Supreme Court have already put their thumbs on the scale in ways that will help Donald Trump. And their index fingers. And their middle fingers. Especially their middle fingers. From Shelby County v Holder, in which the Court gutted the Voting Rights Act, to Citizens United v FEC, in which the Court opened the floodgates to unlimited corporate spending on elections, to Janus v AFSCME, in which the Court struck a blow against the ability of workers to organize in unions, the conservatives on the Roberts Court have worked hand-in-glove with Republican lawmakers to undermine democracy and make it easier for the GOP to seize power against popular will

In April, the Court forced Wisconsin primary voters to choose between their safety and their right to vote. Just two days after the Republican National Committee asked the Court for an emergency order in a dispute over absentee ballots, the Court came through with a ruling requiring Wisconsinites who had requested absentee ballots on time but not yet received them to vote in person in the midst of a pandemic that had much of the nation under stay-at-home orders. 

That decision set the stage for a fight that will continue to play out through the election: Republicans want to make it as hard as possible for people to vote—particularly people of color, who already face higher barriers to participating in elections. Because their path to power lies in preventing people from voting, Republicans have expanded their traditional vote-suppression tactics to include opposing measures designed to make it easier and safer for people to vote during the ongoing pandemic—and they are turning to the courts for help. Buzzfeed has identified nearly two dozen lawsuits in which the Trump campaign and RNC are trying to make it harder for people to vote; in total there are already more than 300 cases related to the election pending before the judiciary. 

In Texas, the state’s all-Republican Supreme Court has sided with Texas’ Republican Attorney General, blocking Harris County from sending mail-in ballot applications to all voters. And just last week, the 11th U.S. Circuit Court of Appeals—led by a judge on Donald Trump’s Supreme Court shortlist—allowed Florida’s Republican government to suppress hundreds of thousands of votes, effectively disenfranchising people who have been convicted of felonies by requiring them to pay a secret poll tax. That’s right: A secret poll tax. Florida refuses to even tell these citizens how much they must pay in order to vote, making compliance all but impossible. It’s important to understand that this Jim Crow-style poll tax is directly intended to subvert the will of Florida voters, who two years ago overwhelmingly approved a ballot measure restoring voting rights to people with felony convictions. 

Trump has made clear his reliance on the courts to keep him in power, admitting: “My biggest risk is that we don’t win lawsuits. […] We have many lawsuits going all over. And if we don’t win those lawsuits, I think—I think it puts the election at risk.” 

With stakes that high and a reliably partisan conservative majority on the Supreme Court—and Trump appointees accounting for a quarter of the entire federal judiciary—the worst may be yet to come. The Courts could help Trump by ruling in his favor on a virtually limitless range of cases: Who gets sent a ballot and how; when ballots must be returned and how; which ballots that have been returned should be counted; and whether voters should have the opportunity to fix problems with ballots that have been rejected. And that’s just for vote-by-mail. What happens if Trump tries to deploy law enforcement or military personnel to intimidate potential voters, or when Trump-inspired civilians take the matter into their own hands? How will the Court react if the Trump administration seizes uncounted ballots from heavily-Democratic precincts? Will they weigh in on the criteria used to determine whether ballots should be counted? On the validity of individual ballots? Issue rulings that simply delay counting long enough to run out the clock before results must be certified? What will it do when disagreements within states over which slate of electors to certify arise? 

We shouldn’t kid ourselves that Roberts and his colleagues will be constrained by the need to come up with a plausible rationale for helping Trump and the GOP. Not when Roberts was willing to dismantle the Voting Rights Act on the absurd premise that racism has ceased to affect voting rights. Not when the Court’s conservatives took just 48 hours to weigh in on the GOP’s behalf in Wisconsin earlier this year. And not when the Court has the ability to shape the outcome of the election without offering any explanation at all

Vox’s Ian Millhiser explains the Court’s increased use of its “shadow docket”—orders and summary decisions that do not follow regular procedure, which are often handed down on Friday evenings to escape scrutiny, without any explanation from the majority. According to Millhiser, “The ideological cast of the shadow docket, moreover, is even more conservative than the Court’s regular docket. […] The Trump administration has a particularly high win rate in shadow docket cases. And it knows it. It asks the Supreme Court to block lower court orders far more than any recent administration.”

In case any of this sounds far-fetched, here’s where I give myself (and Dan Pfeiffer) some PTSD and remind you that a conservative Supreme Court has already handed the presidency to a Republican who lost the popular vote once in recent memory, in a ruling so absurd the court took pains to note that it should not be considered precedent for future cases. And the court’s conservative majority has only grown more partisan since then. 

So. That’s all pretty bleak. What can we do?

First and more importantly: Vote, as early as possible. If your state allows it, voting early and in person is a good way to safely and securely cast your ballot without subjecting it to Trump’s attempts to manipulate the mail. By voting early you can avoid last-minute crowds and reduce strain on the system—and reduce the chances Trump and the courts can find a reason to invalidate your ballot. Likewise, if you’re voting by mail, do it as early as possible.

Second: While the Supreme Court is not accountable in a traditional sense, Chief Justice John Roberts has shown some signs of concern about the Court’s legitimacy. And that’s where the threat of court expansion comes in again.

Conservative court-watchers like the Manhattan Institute’s Henry Olsen believe the Supreme Court handed down some surprisingly moderate decisions in its most recent term because of Roberts’ alarm at growing calls for structural reform, like expansion of the Supreme Court, from the left. According to this theory, Roberts moderated his stance on key cases involving immigration, LGBTQ, and abortion rights in order to diffuse some of the pressure building for reform and lull liberal critics of the court back into complacency. Roberts knows that, absent structural reform, he and his fellow conservatives are likely to control the court for decades to come. Protecting the perception that the Court is a legitimate, neutral body is essential to the preservation of Roberts’ own power. 

Nobody should be fooled by Roberts’ gambit, or give him the breathing room he seeks. If calls for court expansion helped pressure Roberts to moderate his rulings this year, they could be a crucial tool to make sure he does not feel comfortable putting his thumb on the scale in Trump’s favor in election-related cases. John Roberts and his colleagues must be made to understand that if the Supreme Court hands the presidency to a Republican for the second time in the last six elections, after having spent years aiding the GOP’s efforts to suppress votes, the Court simply will not have any remaining credibility or legitimacy, and reform will be necessary. Because the Court could quickly and without warning rule on any number of election-related matters, it’s important for activists and policymakers to make this clear now. 

Some might be concerned that calls for Court expansion might backfire, encouraging Roberts to help Trump retain power as a way to protect against progressive Court reform and preserve Roberts’ own power. This is an understandable concern, and reflects the dire circumstances we face. But it doesn’t withstand scrutiny. 

First, if Roberts is so corrupt and power-hungry that he would respond to calls for structural reform of the Court by putting his thumb on the scale to ensure an electoral outcome and entrench his own power, we would be foolish to trust he wouldn’t take such action no matter what. That would be like thinking Mitch McConnell wouldn’t have denied Merrick Garland a confirmation hearing had Democrats not opposed lower-court nominees of President Bush. The last few decades have not been kind to assumptions that progressives can avoid goading conservatives into extreme acts if they just keep quiet.

Second, Roberts wants not only to avoid structural reform, but to preserve the perceived legitimacy of the Court. He has long spoken directly of the need to maintain the Court’s credibility, legitimacy, and stability and expressed alarm at the perception that justices are partisan. Roberts must be made to understand that if the Court unjustly aides Trump’s efforts to remain in office, it will have no remaining credibility or legitimacy. If for no other reason, progressives must make this clear in order to offset the pressure conservatives including Mike Pence have applied through withering attacks on Roberts. If Roberts thinks progressives will tolerate an unfair decision in favor of Trump—as they tolerated Bush v Gore—but conservatives will view the court as illegitimate if it rules against Trump, that could have disastrous consequences for our democracy. Roberts must therefore be made to understand that if he helps steal the election for Trump, he risks triggering massive resistance from which the court’s legitimacy may never recover.

Finally, the left must understand what the right knew in 2000: The fights that lie ahead will not be decided solely by which side has the soundest legal arguments. From local election boards to the chief justice of the United States, the people in charge of administering our elections, counting votes, and ruling on the legality of it all are political actors. Conservatives will stop at nothing to maintain power. Those of us who care about democracy must bring the same intensity to our efforts that the other side brings to its efforts to suppress votes and override the will of the people. 

Jamison Foser is a consultant and writer. He served as senior adviser at NextGen America for the 2016 and 2018 election cycles and was previously executive vice president of Media Matters for America and research director at the DCCC. His current clients include Take Back The Court, which supports Supreme Court reform. The views in this column are his own. Follow him on Twitter @JamisonFoser.