Notions of judicial independence serve only to protect those already in control of the Supreme Court. (Getty Images)

How the Left Can Seize the Supreme Court

The Supreme Court has become a political body, and after the announcement of Justice Kennedy’s retirement, it’s up to the Democrats to take it back. Here’s how.

BY Marc Daalder

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In order to act as a real opposition party and concretely block the Right’s judicial and legislative agenda, Democrats need to accept that the Supreme Court is a political body and seize it.

On Wednesday morning, shortly after the Supreme Court announced yet another judicial victory for conservatives with their anti-union ruling in the Janus case, Rep. Adam Smith (D-Wash.) said that “the Supreme Court is no longer a judicial body.” Instead, he told reporters, “it is an arm of the Republican Party.”

Just hours later, Justice Anthony Kennedy announced his retirement—and with it, yet another opportunity for Donald Trump to appoint a judge to the bench of the highest court in the land, firmly cementing a conservative majority for years to come. This development has wide-reaching implications for abortion rights, gay marriage, gun control, and almost every other social and political issue that could come before the court.

The Left, however, still has a chance to fight back and seize the court.

The first step entails recognizing, like Smith did, that the Supreme Court is now a political body. Although Republicans haven’t explicitly admitted this, they clearly understand it to be the case. Donald Trump’s release of a short list of conservative candidates for Antonin Scalia’s vacant seat, while still a candidate, was an unprecedented move.

Further evidence of the Court’s politicization can be found in its own rulings. Increasingly, the Court rules 9-0 on non-political matters and 5-4 on political ones, and the latter decisions are almost always along party lines. While Kennedy served as a swing vote in a few key cases, he still sided with conservatives far more often than with liberals on the Court—in 2018, Kennedy sided with conservatives in all 14 of the ideologically-split 5-4 votes.

So, when push comes to shove, the Supreme Court rules with whatever party or ideology has the majority. The Right understands this, which is why they’ve pushed so hard to take control of the Court (and the rest of the judiciary). The Left, too, needs to come to terms with this fact and wage an all-out campaign to seize the court.

There are two mechanisms that the Left can rely on to take back the Court: impeaching sitting justices and packing the Court.

The precedent for impeaching justices—which only requires a simple majority of the House and two-thirds of the Senate—can be found in the case of Samuel Chase, appointed to the Supreme Court by George Washington in 1796.

Upon witnessing efforts by the Anti-Federalists under Thomas Jefferson to weaken the judiciary in the early 1800s, Chase spoke out against the president’s policies. In response, Jefferson worked to impeach Chase. The House of Representatives impeached him but the Senate did not convict him, meaning he could remain on the Court. Nonetheless, the scenario is commonly cited as having two lessons: that the independence of the judiciary has to be preserved and that the judiciary shouldn’t involve itself in political matters.

Now that the Supreme Court clearly has become political, these notions of judicial independence serve only to protect those already in control of it. Democrats ought to embrace the notion that the members of the Court lost their privilege of independence when they became blatant agents for their parties. If the Democrats can gain control of the House and the Senate in November, they can begin impeachment proceedings against conservatives on the Court.

Impeachment is the easiest of the two options to achieve, but the alternative lies in court packing. There is some precedent for this as well. In 1937, after winning reelection but having to watch many of his signature New Deal policies fall under the hammer of the Supreme Court, Franklin Roosevelt proposed a novel plan: expanding the Court. The number of justices isn’t ordained by the Constitution, but rather by the Judiciary Act of 1869—changing the law is, in theory, a perfectly legal opportunity.

FDR faced massive backlash for his proposal. It was widely seen as an unnecessary assault on the judiciary’s independence. At the time, such criticism of the plan was fair—although the Court was ruling with conservatives, it wasn’t as blatantly political as it is today. Now, given that we’ve tossed the independence of the Court out the window, court packing is as valid as impeachment.

Court packing isn’t as viable for the left today, however. First, such a plan would need to pass through the Oval Office, requiring a veto-proof two-thirds majority in the House and the Senate. Second, opening up more Supreme Court appointments only works if the President will appoint left-wingers. Nonetheless, it’s a potential strategy for the future, when a Democrat comes into office.

Before impeachment or court packing become possibilities, however, Democrats have to take back Congress and gain at least a two-thirds majority in the Senate. In the meantime, President Trump has the opportunity to ram a Supreme Court nominee through the Senate before November—or so it seems.

Already, numerous Democratic legislators have come out in support of holding to the “McConnell Standard.” When Senate Majority Leader Mitch McConnell (R-Ky.) refused to hold hearings on Merrick Garland, then-President Obama’s nominee to replace Antonin Scalia in 2016, he unwittingly equipped Democrats with a powerful rhetorical argument on delaying the nomination process in an election year.

McConnell, of course, doesn’t care about hypocrisy or judicial independence—he just wants to secure the Supreme Court for the Right. If he has the opportunity, he will force any Trump nominee through the Senate.

As Gregory Koger writes in Vox, however, the Democrats can shut the Senate down with a procedural mechanism. By refusing to participate in roll call votes, Democrats can prevent the Senate from functioning until November, if necessary. Doing so means that Democrats don’t need to pray pro-choice Republican senators like Susan Collins will join with them.

If Democrats take back the Senate in November, they can simply refuse to allow hearings on any Trump nominees until the next federal election—there is no way Republicans can push a justice through without a majority. While Democrats won’t be able to convict justices in impeachment trials without a two-thirds majority, they can bide their time and allow the Court to rule split—or with Kennedy hanging onto his seat while he waits for his replacement.

These are all radical measures that appear to be shattering a bipartisan consensus around judicial nonpartisanship and independence. However, the Supreme Court isn’t living up to its own nonpartisan and apolitical mandate—and with the incredible power it wields in our system, allowing it to go on unchecked would be disastrous for the country.

In order to act as a real opposition party and concretely block the Right’s judicial and legislative agenda, Democrats need to accept that the Supreme Court is a political body and seize it.


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Marc Daalder is a journalist based in Detroit, Michigan and Wellington, NZ who writes on politics, public housing, and international relations. Twitter: @marcdaalder.

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