Into Expanding the Supreme Court
Donald Trump: (APPLAUSE) I stand before you today to fulfill one of my highest and most important duties under the United States constitution, the nomination of a Supreme Court justice.
Trymaine Lee: (APPLAUSE) Eight days after Supreme Court Justice Ruth Bader Ginsburg died, President Donald Trump nominated a replacement.
Trump: Today it is my honor to nominate one of our nation's most brilliant and gifted legal minds to the Supreme Court. She is a woman of unparalleled achievement, towering intellectual, sterling credentials, and unyielding loyalty to the constitution, Judge Amy Coney Barrett. (APPLAUSE)
Lee: Amy Coney Barrett currently serves on the 7th Circuit Court of Appeals. If confirmed, she will be the fifth woman ever to serve on the Supreme Court.
Amy Coney Barrett: If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake. I would assume this role to serve you. I would discharge the judicial oath which requires me to administer justice without respect to persons, do equal right to the poor and rich, and faithfully and impartially discharge my duties under the United States constitution.
Lee: Conservatives and anti-abortion activists are thrilled with the nomination. Judge Barrett clerked for the late conservative Supreme Court Justice Antonin Scalia. And her past decisions and law review articles signal that she would likely vote to strike down the Affordable Care Act and restrict access to abortion.
Democrats are calling on Republicans to follow the precedent they set in 2016 when Senate Majority Leader Mitch McConnell refused to hold a confirmation vote President Obama's pick to replace Justice Scalia. But McConnell has promised to forge ahead with the confirmation process. And there's little chance Democrats will be able to stop it. But some liberals argue, there's another way. One that would require a new law from Congress.
Aaron Belkin: There's really only one solution that would rebalance the court after its 2016 theft. And that is to expand the Supreme Court.
Lee: I'm Trymaine Lee. Is this is Into America. Today our court expansion went from a fringe idea to an important piece of a debate over the future of the Supreme Court. If you can credit the sudden rise in the popularity of court expansion to one person, it's Aaron Belkin. He's a political sci profession at San Francisco State University. And back in 2018, he started an organization called Take Back the Court.
Belkin: I mean, I'm a political science professor and democracies don't work when courts are stolen. And the unprecedented power grab that Mitch McConnell pulled off was a real assault on democracy. So I was upset and very worried about the country. And I felt confident that the Supreme Court, the stolen Supreme Court would not let future administrations do two criminal things.
So the first thing that they wouldn't let future administrations do is restore democracy. And what that means is that the court itself has destroyed the Voting Rights Act which has prevented millions of Black and brown people from voting and has destroyed our campaign finance limitation system and lost hyper-partisan gerrymandering and has undermined unions.
Those weren't just abstract steps. But those were done to help the G.O.P. consolidate its power and to win elections. And a future administration is going to have to fix that if we want to live in a free and fair country. But the court won't allow that. The second problem that Take Back the Court was designed to address is that the court, it's very clear, will not let future administrations tackle the policy emergencies we face such as health care and no time left on the climate change clock.
And there's really only one solution, and that is to expand the Supreme Court. So Take Back the Court is designed to inform public opinion, the national policy debate about the urgency of expanding the Supreme Court as a necessary step for restoring democracy.
Lee: Obviously in recent days especially, but say the last couple years actually, there has been some momentum growing around this. But when you first posited this idea, for those who are uninitiated, back in 2018, how did people respond?
Belkin: Well, people said that the idea was nuts.
Lee: It's crazy.
Belkin: In fact--
Lee: It's crazy talk. Can't do it. (LAUGH)
Belkin: Well, the thing is that court expansion had been all but taboo in American politics since 1937. Because Franklin Delano Roosevelt tried to expand the court. And there's a conventional wisdom that he failed. We actually don't think he failed. I think he succeeded because his threat to expand the court arguably, and some historians disagree.
But the the preponderance of evidence is that his threat to expand the court convinced the court to start upholding New Deal legislation, which is why we still have the Social Security Act. So we don't think he failed at all. But the conventional wisdom was that he failed for 81 years.
And so people were like, "Yeah, don't do this. This is really bad." And at the time zero organizations, when I started, zero organizations agreed that it was a good idea. And, you know, a professor here and there had spoken about it. But really no national thought leaders.
Lee: One thing that might offer some reassurance to folks is on the Take Back the Court website, W. Kamau Bell is advocating for the expansion. So if WKB said it, you know, we're still good.
Belkin: I mean, the politics of court expansion have shifted very, very, very fast. And it went from an idea that was not even on the agenda two years ago, to today where Senator Schumer said that if RBG is replaced, quote/unquote, "Everything is on the table." That means court expansion.
Chairman of House Judiciary, Jerry Nadler, said that if RBG is replaced, were going to have to expand the court. David Plouffe, Obama's top political advisor has said we have to expand the court. Heather McGhee, brilliant racial justice advocate and thought leader has said so.
So a lot of people are now talking about the urgency of court expansion. Alicia Garza, co-founder of Black Lives Matter is on our board. So yeah, there's a growing understanding. And W. Kamau Bell has been with us since almost day one. And his support has meant the world to me. So yeah.
Lee: So let's kind of dig into this just a little bit. So we're talking about justices to the Supreme Court. And, like, what are your main arguments? What are your main points?
Belkin: I mean, the stolen Supreme Court is about to destroy the Affordable Care Act in the middle of a pandemic. The Affordable Care Act was put into law by a president who came into office with a national mandate to do just that. We've had some good rulings for LGBT people here and there.
But basically the court has been assaulting women and workers and people of color for the last generation in order to uphold the interests of plutocrats and the G.O.P. Imagine a Biden administration comes in with a senate in Congress, starts to issue executive orders.
Congress starts to pass laws in order to get us out of the deep, deep hole that Trump has dug us into. And some lower court Trump judges immediately enjoin those actions which means they prohibit the implementation of those very needed policies.
And then the Supreme Court says, "Okay, you know, we'll just let those policies sit there and not be implemented while they're tied up in litigation for years." This court and lower court Trump judges will have a Biden White House in handcuffs on day one. And once Biden and others see that, especially in the middle of a pandemic, the politics are gonna continue to change very, very quickly.
Lee: You used this word a couple times, stolen. Stolen court. What does that mean?
Belkin: Well, I mean, throughout modern American history every time there's a vacancy on the Supreme Court the current president has been allowed to fill that vacancy. And not just allowed, but that's what the constitution says is supposed to happen. And in 2016 when the late Justice Scalia died, this was eight months before the 2016 election. And Barack Obama nominated a rather old, rather moderate candidate, Judge Merrick Garland.
Barack Obama: I've selected a nominee who is widely recognized, not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence. These qualities and his long commitment to public service have earned him the respect and admiration of leaders from both sides of the aisle.
Belkin: So he was not kind of a 27-year-old, flaming liberal or anything like that. He, you know, had been widely praised by Republicans when he was elevated to the appellate court level. And Mitch McConnell denied Garland a hearing or a vote.
Mitch Mcconnell: The American people are perfectly capable of having their say, their say, on that's issue. So let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.
Belkin: And if McConnell had gone along with his constitutionally mandated duty to advise and consent, then the court for the first time in a generation would have switched from majority conservative to majority liberal. And so we would have had a very different Trump administration if the court had not been stolen. Because the court would have held the Trump administration accountable in a way that this court has not. Time and time again this court has bent over backwards to allow the Trump administration to violate the rule of law.
Lee: You know, obstructing Merrick Garland was clearly political. But the Supreme Court, the idea that this was to be this apolitical body. Now expanding the court, right, doesn't this feed into the politization of the court itself? Doesn't that just give fire power to one side as opposed to the other?
Belkin: The idea that the court is apolitical is a myth. The court is political. And I would even say that that's a good thing. I mean, you want justices to use their values when they are deciding cases. They also of course have to read the law. So there has to be kind of a combination of law and values.
But that's not a bad thing when values inform jurisprudence. Would expanding the court politicize the court? I would say that expanding the court would rebalance the court. The court is controlled now by justices who were appointed by presidents who did not win the popular vote. You know, the Democrats have won the popular vote in seven out of the last eight presidential elections. And yet the court drifts further and further and further to the right.
Professor Thomas Keck is a really brilliant political scientist at Syracuse University. And he distinguishes between two types of reforms. And he calls them constitutional hardball. And he distinguishes between constitutional hardball designed to destroy democracy.
For example when the Supreme Court destroyed the Voting Rights Act when Mitch McConnell and his Republican allies engaged in voter suppression across the country. That's constitutional hardball. But it's designed to undermine democracy.
Court expansion is constitutional hardball according to Keck, but it promotes democracy. It's very consistent with American practice. I mean, the number of justices has changed six times in American history. So rebalancing the court would be much more consistent with American law and practice than what Mitch McConnell did in 2016.
Lee: So you mention that it's changed in the past. Can you kind of talk to us about, like, when it's changed and how it's been changed, the number?
Belkin: Yeah. I mean, the number has been as low as six and as high as ten. And the number fluctuated immediately after our founding and throughout the 19th century. And then in the 1860s Congress passed a law establishing the number at nine. And that's been the number since right after the Civil War.
Lee: So those of us who aren't, you know, political scholars and doesn't understand what the constitution says about the Supreme Court, it just seems like, no, it's fixed.
Lee: But what does the constitution actually say?
Belkin: The number of justices is not set in the constitution. And the constitution gives Congress the right to shape the contours of the court.
Lee: So in your reimagining of the court and the expanding of the court, how many judges would you want to add?
Belkin: So we need a court that rules on the basis of law and not on the basis of G.O.P. partisan interests. We need a court that will allow the next president to restore democracy and fix health care and address climate. We don't know what that number is yet 'cause we don't know how many President Trump will have appointed by the time he's done. But the key is we need enough justices to get the job done.
Lee: Is there a number that's too big? Are we talking about, like, we just need 15? We just need 16. (LAUGH) We need 18. Is there one that just, like, all right now it gets unwieldy?
Belkin: Well, I mean, you know, if RBG is replaced, then it's going to be a six/three stolen conservative court. And so if you add fewer than four, you won't have a court that's able to get the job done. But I think the most important principle is whatever it takes to get the job done rather than a specific number.
Lee: Are there viable alternatives? Like, why not term limits?
Belkin: There are a bunch of judicial reform options that look good on paper, but that won't work. And term options is one of those. I mean, the problem with term limits is they don't rebalance the court to the point where the court would allow the next administration to restore democracy and provide health care and address climate change and brook immigration and gun safety.
So I think term limits are a good idea. But the way to do that is to enact expansion and term limits and an ethical code of conduct for the Supreme Court at the same time. The Supreme Court is the only federal court that does not subject itself to a code of conduct. So do all those three things at the same time. But if you don't include court expansion in the mix, you're not gonna solve the problem.
Lee: We have to take a break. And when we return, how the public views court expansion. Stick with us.
Lee: We're back with Aaron Belkin. Do we have a sense of, like, how the public views court expansion generally?
Belkin: I mean, a majority of Democrats support the idea. And when you poll the public at large, opinion is split roughly 40/40 with about 20% unsure. And that's before party leaders have made the case to the public about why this is so important for protecting health care during a pandemic and saving democracy.
I mean, remember, you know, impeachment before party leaders made the case to the public. Not that many Democrats supported it. But as soon as party leaders explained why it was so important, support shot up. Well, with court expansion, I mean, the public gets that this is a stolen court that has sabotaged democracy. So before leaders have made the case, a majority of Democrats already support the idea. But once party leaders and other leaders start making the case more aggressively, I think there will be even more support.
Lee: But in this current context, like, do you really believe, 1) that it could actually get through? Right, it could actually happen?
Belkin: You know, as I mentioned earlier, court expansion was really taboo for 81 years. I'm really proud that my group worked really, really hard for two years to put it on the map. And even before Justice Ginsburg died, 11 presidential candidates had come out and said they were open to court expansion. Seventeen progressive power houses like Sunrise Movement and NextGen are calling for court expansion. And you see support. Senator Hirono had said that we might have to expand the court. I mean, that was all before Justice Ginsburg died.
Lee: So you had this sense of urgency kind of bubbling even before Justice Ginsburg passed away. But her death brought a lot into kind of stark relief. There is some irony here because RBG herself was opposed to the idea of expanding the court. And she gave and interview with NPR last year saying as much.
Ruth Bader Ginsburg: Well, if anything it would make the court appear partisan, it would be that. One side saying, "When we're in power, it was only to enlarge the number of judges. So we will have more people who will vote the way we want them to."
Lee: Does that change anything at all?
Belkin: No. Look, RBG and Justice Breyer has also spoken against expanding the court. The justices on the court, especially when they're in the minority, they have to maintain collegiality so that they can form coalitions with their arch conservative peers and hopefully once in a great while, get a non-crazy decision.
And this last term we did see somewhat moderate decisions on DACA and LGBTQ rights and reproductive justice and gun safety. And the threat to expand the court had a lot to do with that. But that also had to do with Justice Ginsburg and Sotomayor and Kagan and Breyer being able to form coalitions with Justice Roberts.
And John Roberts, he speaks in a moderate way. And he smiles a lot. He seem very sweet. He even criticized President Trump when Trump said that there's a difference between Obama judges and Trump judges. And Roberts said, "No, no, no. There's no Obama judges or Trump judges. They're just judges doing, you know, hard work to call balls and strikes."
That is such unmitigated bull (BLEEP). Sheldon Whitehouse, senator from Rhode Island, did a study of 73 split decision simucases under Justice Roberts. So a split decision is a five/four or a five/three ruling. And that means almost by definition it's a really high stakes important case.
And Sheldon Whitehouse went through and he found that the court voted in the direction favored by G.O.P. donors 73 times. And this was what was even more interesting. Whitehouse went through and he found that in about half of those 73 rulings, the conservative majority had violated conservative judicial doctrine in order to reach a ruling that G.O.P. donors wanted.
So what does that mean that they ignored conservative judicial doctrine? It means these principles that they supposedly, you know, think are so lofty and important like texturalism and originalism, they just ignored in order to cater to the donors. What that shows is that G.O.P. justices are voting on the basis of partisanship and not principle or law. They are politicians in robes. They are not justices.
Lee: Is there a concern though that, say, a generation or two down the line that when ultra-conservatives regain complete power that they remake the court again? And then we're back in the same position we're in now (LAUGH) with, you know, the radicalization of the court?
Belkin: Yeah, I have a few things to say about that. It is very, very clear that even if the Democrats do nothing, the Republicans will expand the court if they every need to do so into control it. How do we know that? We know that because they have been packing courts at the state level, for example in Georgia and Arizona.
And we know that they use state courts as laboratories for how they behave at the federal level. And also the very idea of court packing was first proposed by the co-founder of the Federalist Society in the paper he published back in 2017, a year before my organization started talking to progressives.
So this is their idea. I mean, does anyone seriously believe that Mitch McConnell's Republican party refrain from doing whatever it takes to steal the court? Of course not. And then the final thing to say is that counter-intuitively, court expansion, if it's done right is actually the safest way to protect the court moving forward.
And the reason of that is that, look, progressives have a fantasy that the Republicans can be de-radicalized at the ballot box. And that's just wrong. Because the Republicans got destroyed at the ballot box in '92, in 2006, in '08 and in 2018. And each time they became more radical.
So the Republicans don't have to win every election to remain in power. Because when they're in office, they're in power. And when they're out of office, they just obstruct and use stolen courts to block Democrats from getting much done. And the party continues to radicalize.
Lee: You know, in order for this to actually work, a number of things would need to kind of fall in place, you know, including a Democrat winning the presidency, taking the Senate, holding the House. But even Joe Biden has said that he doesn't necessarily support it. So is this premature? Is it a pipe dream? Is this actually, like, a realistic thing that Democrats should be thinking about seriously and getting behind? Or is it just like, "Let's just hope all the pieces fall in line"?
Belkin: Look, it takes a long time in American politics to move from public education, public conversation to policy change. And court expansion, we've only been talking about it for two years. And already the topic is at the very top of the agenda. And Biden did express skepticism about court expansion during the primaries.
I would argue the politics have already changed very, very rapidly. And that if McConnell goes through with the violation of the so-called McConnell rule and he replaces RBG and if Biden and the Democrats return to power and the stolen Supreme Court puts them in handcuffs on day one and won't let the White House get us out of the hole Trump has dug us into, I think the politics are gonna continue to change very fast.
Lee: Does positing and pushing this idea in any way, you think, maybe radicalize conservatives even more, right, and give them fire power? Why not Democrats just focus their energy on winning the White House and the Senate?
Belkin: Oh, I mean, you know, listen, we're not, you know, an electoral organization. We're not giving campaign advice. And I think Joe Biden and candidates are rightly focusing on the economy and COVID and hyper-incarceration, racial justice, climate change.
They're focusing on the the issues that people care about. So I absolutely agree. Like, this is not campaign advice. This is a set of policies that are gonna have to be enacted if and when Democrats come into power. And if they don't, the court expansion conversation needs to be continued to remind Justice Roberts that he needs to tread carefully when he issues rulings that the vast majority of the American people dislike.
Lee: Aaron, like I said, a lot to chew on. But I'm glad we had this conversation. Thank you very, very much.
Belkin: Thank you so much, Trymaine. It's really an honor and pleasure to talk with you.
Lee: Aaron Belkin is a political scientist at San Francisco State and the director of Take Back the Court. Confirmation hearings for Judge Amy Coney Barrett are scheduled to begin in the Senate Judiciary Committee on October 12th. Democrats have said they will do everything they can to fight the confirmation.
But the Republican majority appears to have the votes to install Judge Barrett on the Supreme Court before Inauguration Day. Into America is produced by Isabel Angel, Allison Bailey, Aaron Dalton, Max Jacobs, Barbara Raab, Claire Tighe, Aisha Turner, and Preeti Varathan. Original music by Hannis Brown. Our executive producer is Ellen Frankman. Steve Lickteig is executive producer of audio. I'm Trymaine Lee. We'll be back on Wednesday.