Opinion: The alternative to Supreme Court enlargement is surrender

Opinion: The alternative to Supreme Court enlargement is surrender

The Supreme Court is pictured on Dec. 4. (Stefani Reynolds for The Washington Post)

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By E.J. Dionne Jr.

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December 19, 2021 at 8:00 a.m. EST

What the right wing understands that liberals have mostly forgotten is that reshaping rules and institutions can determine outcomes in advance, undermining democratic decision-making. The trappings of democracy remain, but real power is vested in the hands of those who bent the rules to predetermine the results.

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Liberals are at a special disadvantage when it comes to confronting a radically conservative Supreme Court because most of them are, by nature, institutionalists. They are wary of upsetting long-standing arrangements for fear of mimicking the destructive behavior of the other side and, in the process, legitimizing it.

But the aggressiveness of the right has turned this procedural delicacy into a rationalization for surrender.

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Conservatives have abused the process of seating (and blocking) judges again and again. The current 6-3 right-leaning conservative Republican majority on the Supreme Court — let’s call the partisanship by its name — would be a 5-4 moderately liberal Democratic majority if Sen. Mitch McConnell (R-Ky.) had observed the long-standing norms surrounding appointments.

Without fear or shame, McConnell (1) blocked consideration of then-President Barack Obama’s nominee, Merrick Garland, to replace Antonin Scalia for 10 months until Donald Trump took the oath of office in 2017 and could name Neil M. Gorsuch; and (2) McConnell rushed through Trump’s final appointee, Amy Coney Barrett, holding a confirmation vote just eight days before Election Day 2020 — even as millions had already cast their ballots.

Now comes the deluge. The radicalism of this 6-3 majority is obvious. It has been well-documented most recently by my Post colleague Ruth Marcus, Slate’s Dahlia Lithwick and Linda Greenhouse in the New York Times. As they have warned, the extremism, the indifference to precedent, the twisting of the law, the imposition of ideology by judicial fiat — it’s all likely to get much worse.

During oral arguments on Dec. 1, Justice Sonia Sotomayor referred to public perception of the Supreme Court‘s decisions on a Mississippi anti-abortion law. (The Washington Post)

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Liberals, progressives and moderates who value the rule of law can wring their hands and sit back while this court carries us all back to the 19th century. Or they can say: Enough.

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The first step toward doing so is to insist on the truth: This court has already been packed by the right. And the only effective way to undo the right’s power play is to unpack it by adding four justices.

Proponents of court enlargement are still a minority, even among liberals — for now. But their ranks are growing, and one important recruit is Sen. Elizabeth Warren (D-Mass.), who endorsed the idea of adding justices last week.

True, Warren is a leading progressive, so perhaps you’re not surprised. But she is also a former law professor who reveres the judiciary and did not come to this position lightly.

“I wanted to believe in the independence of the Supreme Court,” Warren told me in an interview. “It's what I learned in junior high. It's what I studied in law school, and it's what I taught when I was a law professor. … But the Supreme Court has fundamentally changed in the past few years. It starts when Mitch McConnell hijacked two seats, but it accelerates when this extremist court knocks the foundations out of the premise of rule of law.

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“In area after area,” she continued, “campaign finance, union organizing, equal protection, having a day in court, voting rights and now Roe, this court is willing to ignore decades and decades of settled law.”

Warren acknowledges that liberals were slow to see the impending catastrophe. “A lot of good liberals and progressives … never believed that a court would really overturn Roe, and they never saw how many other things this court was overturning.”

She’s especially concerned that by putting social issues such as abortion in the forefront, judicial conservatives give themselves cover for court decisions that enhance corporate power, reduce the ability of employees to fight back and undercut government’s capacity to regulate economic activity in the public interest.

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Corporations, she said, “can capture the courts and get a backup, a second chance — a second chance to deny unions of the opportunity to organize, a second chance to keep people who’ve been cheated on [a] contract out of court, a second chance to deny the rights of people who are injured.

“So much of the early push on the right is corporate and it’s much quieter,” she added. “They don’t want to draw attention to it, and Democrats frankly didn’t pay a lot of attention to it.”

They are being forced to do so now.

People I respect, including most recently Marcus, argue that enlargement would permanently undercut the court’s legitimacy. I understand their concerns but would ask them to consider that this legitimacy has already been destroyed by the political right’s manipulations and the majority’s growing extremism.

The conservative justices want us to forget how they got their majority and to bow respectfully before their radicalism. Democracy, justice and moderation itself demand that we not capitulate.