In terms of “telegraphing” your punches, it hardly gets any more obvious than what the Democrats have been up to lately. Despite having recently used the filibuster to stop the next round of COVID relief from going through, Chuck Schumer and his friends have clearly indicated that they plan on ending the filibuster for normal legislative questions if they retake control of the Senate next year. But that’s just step one. If they control both chambers and the White House (*shiver*) they’re going to move forward with packing the Supreme Court with more liberal justices. It’s being claimed that this will be in revenge for Donald Trump replacing Ruth Bader Ginsburg, but you can look forward to them doing this even if that doesn’t happen.
Rushing to their defense this week is former Obama adviser Dan Pfeiffer. In a recently published essay, Pfeiffer attempts to make the case as to why Democrats shouldn’t be afraid to add as many justices to the Supreme Court as are necessary to push through and protect the liberal agenda. In fact, in Pfeiffer’s world, it should be the most natural thing in the world to do and easy as pie to boot. So they might as well start putting their plans in place now.
It is critical that Democrats keep expansion as a credible threat in the coming fight over the Ginsburg seat. It’s some of our only leverage. We can only do that if we win the message war with the Republicans over expansion.
I have been a supporter of court expansion since the Republicans jammed Brett Kavanaugh on the court and have spent the last several months working with Take Back the Court — the leading advocate for court expansion. So, I have spent a lot of time thinking about the issue and arguing with people about the merits for expansion. Based on that experience, here is some message guidance for the fight to come:
Demystify Expansion: There has been little to no discussion of changing the makeup of the court for eighty years, so most people in American politics know nothing of the history or the law. Here are some facts that I have found to be very persuasive with skeptics:
You can read the rest at your leisure if you wish, but there’s nothing revolutionary or remarkable in there. Pfeiffer points out that the number of justices on the court is not set in stone in the Constitution and could be changed by a simple act of Congress just as with any other law. He also notes that the number of justices on the bench has changed in the past. Both of these things are true, but it’s an approach that very much whitewashes the reality of this history.
It’s true that the court grew in size as the nation grew, from five justices to seven to nine in 1837. The only other changes came in the period around 1863 when Congress was messing around with Andrew Johnson after his failed impeachment. It’s stayed at nine for this long because there was never any pressing need for the court to be larger.
The turnover rate for Supreme Court justices is low and slow, and that’s also for a reason. We don’t have sudden upheavals in the makeup of the court on a regular basis to avoid the chaos of constitutional principles and precedents that switch back and forth like laundry going from the washer and the dryer based on shifting political winds. But that’s precisely what Pfeiffer and his friends are looking to do. Unsatisfied with their efforts at winning enough presidential elections to control appointments to the court under the regular rules of order, they’re looking to cheat. Instead of determining to adopt policies that are acceptable to a broad enough swath of the country to give them those opportunities, they’re hoping to use one fortuitous election as a special pass allowing them to stack the deck… literally.
The rationale behind Pfeiffer’s “explanation” is easy to translate. Why should the country accept a sudden, significant expansion of the court? Because it’s what Democrats want in this particular moment and their wishes should all come true. There’s no other reason. It’s a case of impatience with a system that has been serving us well since far further back in history than the oldest living Americans can remember. These are the sniveling cries of spoiled children who weren’t given a treat after dinner and now want to use that as an excuse to go rob the candy store.
This can’t be allowed. What you’re seeing here is what lies behind the mask of the current Democratic Party and it’s not pretty.