After one of the most unconventional processes in American history, Judge Amy Coney Barrett has been confirmed and sworn in as the newest justice on the U.S. Supreme Court. This means that a president who received 3 million fewer votes than his opponent and a Republican-led Senate that represents 15 million fewer Americans than the Democratic “minority” have seized a Conservative supermajority on the Court. That supermajority could very well be instrumental in deciding the results of an election now just seven days away.
Let’s be clear: Barrett’s nomination was illegitimate, un-democratic, and anti-American from the start, and her place on the Supreme Court should be viewed with the same unlawful pallor. The process represented a disgraceful power grab by a party on the precipice of a legislative and executive branch shutout. Even as the country becomes more diverse and progressive, Congressional Republicans have shown that they intend to cling to minority rule through the federal judiciary, against the will of the American people.
Right now, the Court poses a significant threat to voting rights and voting access, the underpinning of a functioning democracy. With Barrett’s addition, there are now five justices to the judicial right of Chief Justice John Roberts, who wrote the majority opinion in Shelby County v. Holder, a 2013 case that gutted the landmark Voting Rights Act.
Additionally, just last night, the Supreme Court ruled that ballots in Wisconsin must arrive by election day to be counted, and Justice Brett Kavanaugh cited fringe legal beliefs in his opinion, arguing that races called after election night could cast a cloud of illegitimacy over the results. Such rulings will only become more frequent with the Court’s new makeup, and Kavanaugh’s decision lays the shocking groundwork for the Court to decide which ballots should count in the 2020 election.
Clearly, we need substantial court reform in the coming years, or else the very foundations of our democracy will continue to wither and decay. One proposal that’s already gained significant traction for Democrats is the idea of court expansion.
The constitution gives Congress control over the number of justices on the Supreme Court, and, should Democrats win the Senate and White House, it will be perfectly legitimate for them to nominate and confirm additional justices to the Court. While many on the right have been quick to call so-called “court packing” a disgraceful violation of norms, they ignore that the Republicans have already packed the court by blocking a nominee for eight months and then again by cramming through a last-minute nomination days before an election. Court expansion by a Democratic Senate would simply restore balance to an increasingly countermajoritarian Supreme Court.
Proposals also include term limits for justices, to avoid the political knife fights following unexpected vacancies, and Congressional action to curb the reach of the Court, providing their own legislative check on the Court’s jurisdiction and powers.
Just as the GOP has packed the Supreme Court, they have also packed the lower federal courts full of unqualified, far-right ideologies thanks to Mitch McConnell’s blockade of almost every judge President Obama appointed during the last two years of his presidency. Therefore, most proponents of court reform also support expanding the number of federal judgeships, allowing a Democratic president to restore balance, just as they would with expanding the Supreme Court.
As New York Times writer Jamelle Bouie pointed out in his column earlier this month, the US population has grown by 80 million since the last major expansion of the federal courts, leaving the judicial system overwhelmed. The Judicial Conference of the United States even testified to the Senate Judiciary Committee to explain the non-partisan yet pressing need for additional federal judges to adequately process an ever-increasing caseload.
This shameful appointment threatens every facet of our democracy, but it also reflects a deeper problem pervading through our justice system. Federal courts from the Supreme Court all the way down have long needed a reckoning to keep up with a fast-changing, ever-evolving American society. With the blatant illegitimacy of Judge Barrett’s nomination on full display, perhaps this will be the moment to spark that reckoning.