Brett Kavanaugh was just confirmed on a 50-48 vote — the narrowest margin for a Supreme Court justice in 137 years. The time has now come to pack the Supreme Court.
Senate Majority Leader Mitch McConnell’s (R-Kentucky) decision to ram through Kavanaugh came despite worrying confirmation hearings in which he refused to unequivocally state that unenumerated rights like the right to vote, the right to an attorney, and even the right of interracial couples to marry were Constitutionally guaranteed. Republicans confirmed Kavanaugh despite his past writings stating that sitting U.S. presidents should be immune from all civil and criminal investigations — like Robert Mueller’s ongoing investigation that’s already resulted in six guilty pleas and dozens of indictments.
And of course, Kavanaugh was confirmed despite multiple women coming forward accusing him of sexual assault and misconduct, including a college professor who testified under oath saying that he held her down and tried to rape her at a high school party, and a federal employee with an active security clearance who said in a sworn affidavit that Kavanaugh was present at a party where she was drugged and gang-raped.
The standard Republican talking point, “elections have consequences,” is often trotted out when criticizing people who opposed Kavanaugh’s confirmation, despite Sen. McConnell vowing to not even grant a hearing to a Supreme Court nominee picked by a two-term president who won both of his elections by landslide margins, with nearly a year to go before his second term was due to end. Republicans then quickly confirmed Neil Gorsuch shortly after President Trump nominated him. As The Intercept’s Mehdi Hassan has argued, this amounts to court-packing from Republicans.
So maybe a consequence of the 2020 election — should Trump be voted out of office and Democrats win majorities in both the U.S. House of Representatives and U.S. Senate — should be that two extremely liberal, relatively young judges get lifetime appointments to the Supreme Court. And to borrow Hassan’s term, it could be called “court balancing.”
Nothing in the U.S. Constitution states that there can only be nine Supreme Court justices. Throughout the course of American history, the Supreme Court has had as many as ten justices, and as few as six. The current nine-justice threshold was established in 1869. A simple act of Congress could raise that threshold to 11, and this could happen as soon as 2021, assuming a Democratic president in favor of such a proposal is inaugurated, and Democrats have majorities in both houses of Congress.
There’s also already popular support for adding two new justices. A Morning Consult poll released in July, after former Supreme Court justice Anthony Kennedy announced his retirement, found that 40 percent of registered voters (and 51 percent of Democrats) wanted to pack the court by adding two new justices. Because this poll came out prior to the multiple sexual misconduct allegations against Kavanaugh, support could actually be higher now than it was in July. If a Democratic presidential candidate ran on a proposal to pack the court, a majority of Democrats would support it according to Morning Consult’s poll.
Even if it was never done, the mere suggestion that perhaps Congress and the president should pack the court is likely to make waves. When it looked as if the Supreme Court was going to rule former President Franklin Delano Roosevelt’s New Deal as unconstitutional, the furious president threatened to nominate a new Supreme Court justice for every justice that was aged 70 or older, if a justice refused to retire with full pay. This would have given liberals on the court a majority, and raised the number of justices from 9 to 15. Eventually, two conservative justices caved, saying they would choose to uphold National Labor Relations Act and the Social Security Act, rendering FDR’s plan unnecessary.
And frankly, because a vast majority of Americans oppose lifetime appointments for Supreme Court justices (the July Morning Consult poll found that 61 percent of voters and 51 percent of Republicans want term limits) and because the Constitutional amendment process is so arduous, Democrats will have to pack the court if they want any hope of the court not striking down legislation establishing Democratic goals like Medicare for All, breaking up the big banks, raising the minimum wage to $15/hour, or raising the estate tax to pay for new affordable housing.
With Brett Kavanaugh on the Supreme Court, the nation’s highest court — which is capable of overruling both laws passed by Congress and signed by the president as well as presidential executive orders — will likely be dominated by an ideological bloc that’s far more conservative than most Americans. The only way to establish any balance is to pack the court. If Democrats want to activate both their enraged base and independent voters who don’t want a far-right Supreme Court for the next 20 years, they’ll make “pack the Supreme Court” a mantra for their 2020 campaigns.
Tom Cahill is a contributor for Grit Post who covers political and economic news. He lives in Bend, Oregon. Send him an email at tom DOT v DOT cahill AT gmail DOT com.