The Court’s Been Packed. Now What?

Court Expansion is the Only Legitimate Response To Republicans' Illegitimate Theft of the Court
Court expansion is the only proportionate, effective and legitimate response to Republicans illegitimate theft of the Court. (Creative Commons)

Let’s set the scene: Two men credibly accused of sexual misconduct. Another who compared employers covering birth control to being “involved in the wrongdoing of others.” Now maybe a woman who says Roe v. Wade is tantamount to “abortion on demand.”

These are the people who will rule on a wide range of high stakes court cases on women’s rights if Donald Trump and Mitch McConnell have their way.

Yes, Roe v. Wade is very much on the chopping block, but that doesn’t even begin to cover the potential damage to women. Everything from health care and child care access to sexual harassment and workplace discrimination are likely to land in front of an increasingly anti-woman bench unless we move urgently to reverse the Republican theft of the Supreme Court—starting by adding seats.

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(Boston Red Cloaks / JGS)

Like millions of women and men across the country, we were devastated by Justice Ruth Bader Ginsburg’s death. We were also enraged, because our grief quickly had to morph to fear. I knew that, as women and men committed to justice, we would not be allowed even the briefest moment to mourn an American hero before we had to turn our attention to the next assault on our rights. Sadly, our fears are confirmed. 

Senate Majority Leader Mitch McConnell didn’t give us even a day. In the very same statement in which he professed to mourn the “conclusion of her extraordinary American life,” McConnell danced on her grave, promising to ignore Justice Ginsburg’s dying wish by rushing to confirm her replacement less than two months before the Presidential election.

In doing so, McConnell is obliterating a “rule” he invented four years ago—that the Senate should not confirm Supreme Court justices in a presidential election year.

Court Expansion is the Only Legitimate Response To Republicans' Illegitimate Theft of the Court
Members of the House and Senate Democratic Caucuses held a bicameral press event on May 26, 2016, to demand they take action on Obama’s nomination of Judge Merrick Garland to the Supreme Court. (Senate Democrats / Flickr)

In 2016, President Obama nominated Merrick Garland 237 days before the election. By the time Donald Trump nominates Ginsburg’s replacement, we will be less than 40 days from election day. We’re so close that many voters have already cast their ballot through early voting!

McConnell’s rank hypocrisy is hardly shocking. But is enlightening, because it offers a clear window into his and the Republican party’s long-term strategy.

Republicans have lost the popular vote in six of the last seven Presidential elections, yet they are poised to control a supermajority of the Supreme Court. In addition to eviscerating women’s rights, they will be able to veto any meaningful climate change legislation, erase the Affordable Care Act, block gun safety measures and generally handcuff any future Democratic administration from governing through either legislation or executive action.

Scarier still, they will almost certainly double down on previous rulings that enable voter suppression, gerrymandering, union busting and dark money in politics. That’s all designed to ensure that Republicans can win elections even without majority support, and that even when Democrats do manage to take office, they cannot actually govern. That is not a democracy.

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There is no silver lining to the loss of a trailblazing icon or the decline of American democracy. But if there is one thing keeping me going in this moment, it is hope that McConnell’s choice to overplay his hand seems to have finally awoken millions of Americans to the urgency of our situation.

For the past two years, we have worked with a group called Take Back the Court, to advocate for adding seats to the Supreme Court. We formed that group because democracies can’t function when Courts are stolen, and Court expansion is the only proportionate, effective and legitimate response to Republicans illegitimate theft of the Court.

That was true before last Friday. It’s even more true today.

Court Expansion is the Only Legitimate Response To Republicans' Illegitimate Theft of the Court
To restore the right to vote, ensure reproductive freedom, protect workers, halt our climate emergency, and save democracy, Congress must add seats to the U.S. Supreme Court, says Take Back the Court. (Take Back the Court)

To make America a democracy again, the next Congress and administration must end the filibuster, expand the Supreme Court, restore the voting rights act, give D.C. voters equal representation, and facilitate self-determination for Puerto Rico. The first two items on that list are prerequisite for the rest.

Court Expansion Not Unprecedented

While Court expansion is just coming back into vogue, it is hardly unprecedented. Congress sets the number of justices—no constitutional amendment is required—and has changed that number six times throughout American history. It could do so again by simply passing a bill for the next President to sign into law.

Some observers have proposed other reforms such as term limits or a judicial code of ethics. Those are good ideas too, and we should pass them alongside Court expansion—the goal here is the restored legitimacy of the Court, not a raw power grab.

But no reform other than Court expansion will actually rectify the fundamental problem: that Republicans illegitimately packed the Court by manipulating its size for partisan gain. If we do nothing, it’s like bringing cotton candy to a knife fight. 

We may not have been given any time to grieve Justice Ginsburg’s loss, but we have been given the tools we need to fight back and protect and uphold her legacy. That starts by adding seats to stop a stolen, illegitimate Court from undoing the progress she made for our rights. 

About and

Kate Kendell is the campaign chair for Take Back the Court. She led the National Center for Lesbian Rights, a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy and public education.