Court Packing, Electoral Forms, & Filibusters: An RBG Epilogue

Following the death of Supreme Court Justice Ruth Bader Ginsburg, professional and amateur pundits rushed to figure out the political consequences. About 24 hours later, we’ve reached many predictable points: GOP hypocrisy on why it’s acceptable to nominate someone during the 2020 election year and not in 2016; the blame game featuring everyone from Harry Reid in 2013 to Justice Ginsburg herself for being selfish in not retiring(?); packing the court; and filibuster reform. I want to address the ideas and plans that elicited the strongest reaction from me and what I think can be done about our federal judicial system’s intersection with politics.

Packing the Court: Solves A Problem but Not the Problem

By far the most common reaction following Justice Ginsburg’s death (in my bubble) was for Democrats to win the election and “pack the courts,” the notion of expanding the number of justices beyond nine. The worry is that Trump will be able to ideologically shift the composition of the court for generations by replacing a liberal justice with someone who is, probably, decidedly conservative. A dreaded 6–3 majority. For the record, I am NOT looking forward to this, but I have, for a while, resisted this reaction to this solution.

I’ve never really bought into the idea of court packing as solving the problem of an unbalanced court because, to my eye, the issue with the courts is an electoral problem. Now I DO think the Supreme Court should be larger. I think it should’ve been larger since 2007, and it can be expanded. There isn’t any special reason why the Supreme Court has to be nine justices; it’s been altered six previous times. My argument for expanding the court is about Supreme Court efficiency and expertise. Namely that the frequency of cases and types of cases brought to the table require enough, capable justices to handle that load. Whether that number is 11, 13, or *gasp* an even number is something I’d be happy to consider. But that is a general rule, not a reactionary position to individual policy risks. Again, that is an electoral issue.

To my eye, court packing solves a temporary problem which is rebalancing the ideology of a fraudulently impartial body. Which is useful in the short term but is incredibly susceptible to long term instability, namely the idea that future Senates or Presidents will be able to re-calibrate in kind. One can, reasonably, argue that there isn’t evidence this happened with previous court expansions. True. But that type of argument assumes stability in norms and Sen. McConnell and this iteration of Republicans have shown there is NO reason to believe norms will be stable. The other piece that, I think, is meaningful is the stakes of winning mean winners get things. In this case, it means that Presidents get to make nominations and Senators get to dictate the process. I tend to think we should allow some advantages to winners, provided the winning occurs in a fair way (more on that later).

For now, I think there are solid arguments to expand the court. We also have evidence to suggest that partisan pushes to expand the court are generally unpopular. We should see the court change but calls to pack the court to prevent generations of sway feels like a short-lived solution that wouldn’t really solve the issue of how we got into this pickle.

So, What Do We Do?

The problem is elections. It’s always the problem. Supreme Court nominations and confirmations can drape themselves in impartiality but it’s all about ideological bias and preferences. The process, though, is driven by politicians. And here is where we need to focus on reform efforts that can have long term impacts on the core issues, not the symptoms.

First, and foremost, we should be continuously pushing for electoral reforms, particularly the elimination of the electoral college. We have a system that balances out population discrepancies (Senate) and considers local/statewide differences (House). The President, however, is the executive of the entire county. Over everyone. To my eye, that means the process to elect that individual should be unbiased by these other considerations. One person, one vote. Second, we should promote elections reforms to ensure, including many of the measures in H.R. 1. Specifically, measures that nationally control the processes of elections for federal offices: automatic voter registration, restoring voting rights to incarcerated people, expansion of early voter registration, more funds for equitable polling locations, and gerrymandering restrictions. We need to have a system that can fairly elect representatives so the people in charge will be able to accurate represent our views and can be fairly held accountable.

The other piece, specific to the Supreme Court, is term limits. There is no other office that gets the “job for life” tag and I don’t think justices should get it. I am sympathetic to concerns about justices being above the whims of the electorate so we should have long lasting terms that cover multiple presidential terms and senatorial cycles. Something around 18 years would be fine with me. Enough time to not be worried about little influence but not long enough to exist for 35+ years (think medical science and life expectancy is going up) with singular influence.

In any event, the symptoms of a failed electoral system are potentially on display with judicial picks. But it’s also the case that winners can exert influence over a political system. I want to make sure the “winners” are there based on a fair process. Our current system is disjointed, inconsistent, and rife with unintentional and intentional disenfranchisement that can be readily addressed by legislatively.

Filibusters and Harry Reid

I was floored to see a conversation or two or seventy break out about how Harry Reid is to blame for this Supreme Court kerfuffle we are in as he pushed for eliminating the filibuster in 2013. Ah, 2013…a time long ago. Quick recap: GOP Senators were blocking President Obama court nominations. Democrats were frustrated and partisans wanted the Dems to stop being soft and use the mechanics of government to their advantage (what’s old is new). After threatening it, Sen. Reid led the Democrats to change Senate rules to allow federal judicial nominees and Presidential appointments to get to a confirmation vote by a simple majority. This ended the filibuster for these nominees: the usually required 60 senate votes needed to close debate. Why is this notable: well, it’s hard for one party that is ideologically aligned to get 60 votes in the Senate. Which means action to close debate will require the other party to agree. Which, probably, means you must compromise to get something that can get 60 votes in order to get to the majority vote. Got it? Good.

It was MASSIVELY controversial at the time as the benefit in the now could be the pain of the future when Democrats didn’t have the majority and Republicans could confirm justices. The Senate is, structurally, biased towards rural areas which are far more Republican, so this was a likely outcome. Still, folks praised the move at the time because it circumvented GOP obstruction. I should note that Democrats kept the provision in place for Supreme Court justices. Senate majority leader Mitch McConnell opted to remove it for confirmation of Justice Neil Gorsuch in 2017. All the gentleman’s agreements were gone. Power grabs were the name of the game.

This same feared obstruction led to many calls from Democratic primary candidates to get rid of the filibuster so the Democrats would be able to pass their legislative agenda items. But you cannot have it both ways. Well, you could but that would be…tough to explain. You cannot want the filibuster to be able to pass policy that will impact individuals for generations but want the mechanism in place because judges craft laws that will impact generations.

All of this is to say we should think carefully about how to navigate filibuster reform and what matters to people. Is it more important to be able to push through legislation when you win or maintain the tools to check the majority when you lose? I think the former is crucial but the battle over justices (as informed by election results) gives us a glimpse into what that world could look like and should be used to inform your filibuster preferences going forward.

Politics is unavoidable, so choose wisely in your candidates and your preferences. A careful, deliberate mind is a great tribute to the late Ruth Bader Ginsburg.

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Allen L. Linton II

Free writing about politics, sports, intersection between the two, and Chicago.