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Supreme Court

Expanding the Supreme Court is Authoritarian

Changing the composition of the courts is straight from the authoritarian handbook, and the justification comes from a misunderstanding of history.

Democratic lawmakers today unveiled legislation proposing that the Supreme Court be expanded to thirteen justices, from its current nine. The idea that conservatives and liberals have both whispered about for months, with either trepidation or excitement, is now out in the open. 

I’m among the many conservatives who were concerned watching the administration of former President Donald Trump. In many substantial ways, he followed the playbook of authoritarians around the world. Whether that was through using federal tax dollars to enrich his own companies, disregarding Supreme Court rulings, ignoring subpoenas, delegitimizing elections, or asking his employees to break the law with promises of pardons, his behavior in ways big and small evoked behaviors of authoritarians such as Hun Sen, Teodoro Mbasogo, or Rodrigo Duterte. 

Because of these warning signs about Trump’s approach to liberal democracy and the rule of law, I chose to join the cross-partisan coalition which supported Joe Biden’s winning candidacy for president. And while many of his policy prescriptions have bothered me (as I predicted they would) the first two months of his presidency have represented a shift back to democratic norms in many respects.

But President Biden is risking alienating voters of conscience like me, and setting our country back on the road to authoritarianism with his latest consideration: Toying with expanding the Supreme Court.

Manipulating the composition of the courts is a fundamental tactic in the playbook of contemporary authoritarians. Viktor Orbán, the president of Hungary, who has led perhaps the most tragic descent into authoritarianism in the world over the last ten years used legal means to create a secondary court system. This new court system was staffed entirely with loyalists and would rule on the legality of all of his policies while leaving the old court system in place but in a more limited capacity. 

Similarly, Poland has started a descent into authoritarianism largely on the back of similar “reforms” to the judiciary. In Poland, President Andrzej Duda has justified these moves by pointing the finger at the Communists and suggesting their unfair influence needs to be removed quickly. 

Passing a new law to restructure the Hungarian courts was authoritarian whether or not it was technically legal under the current Hungarian constitution. The same is true in Poland, Turkey, the Philippines, Venezuela, and the many other previous authoritarian regimes that have used the tactic.

I would argue proposals to expand the Supreme Court in the United States fit in the same category.

The Supreme Court has changed in size seven times before. The first three involved the transition between John Adams and Thomas Jefferson, as the nation was still settling on what exactly the democratic norms would be. The last three involved the Civil War and its aftermath. In all these cases, the ruling majority sought to exert control in bunches during the two most crucial transitions in our nation’s history. The only other time the number of Supreme Court justices was changed occurred during the presidency of Andrew Jackson—who is now widely regarded as abusing executive authority especially in regards to the Supreme Court.   

The Supreme Court has never added more than two justices at once, has never had more than ten justices, and hasn’t changed size in any way since 1869. 

So why are Democrats so willing to rip up their recently victorious coalition in pursuit of Supreme Court power? They believe the Republicans did it first.

Today Democrats are still furiously insistent that Republicans are the ones who violated Democratic norms in regards to confirming Supreme Court justices and thus feel justified in violating the norms themselves.

This narrative has been ubiquitous in legacy media ever since the nomination of Merrick Garland, to the point it’s rarely even questioned anymore. 

But as I’ve detailed before, this narrative does not stand up to closer scrutiny.

Many seem to remember that Republicans violated norms by removing the judicial filibuster. But they didn’t. Harry Reid and his Democratic Senate majority did that, while Republicans only extended it to the Supreme Court.

But, in a recurring pattern of finger-pointing, the Democrats suggest they had to do that because Republicans violated norms by making judicial nominations partisan. But again they didn’t. The Democratic party did that with the nomination of Robert Bork to the Supreme Court. The Republicans merely extended the partisanship to lower court nominees as well.

Packing the court has a specific meaning.

In fact, over the last forty years, we’ve seen a pattern of the Democratic party breaking a norm regarding the judiciary, and the Republican party then extending and taking advantage of the new norm until Democrats have to break yet another norm in order to regain control.

This pattern is about to repeat itself. Many now criticize Mitch McConnell for “packing” the Supreme Court by withholding a vote on Merrick Garland but not withholding a vote on Amy Comey Barrett.

It’s significant that the word choice “packing” the court is being used to describe Republican’s behavior. Packing the court has a specific meaning: adding new seats to the court to pack with your own nominees.

Yet, by calling what McConnell did “packing” they set up an imagined precedent that Republicans did it first. They did not.

Much of this misunderstanding, however, can be laid at the feet of the legacy media that’s reported on the events. Regardless of your own affiliation, take a moment to ask yourself honestly: do you believe that the way Mitch McConnell treated the Merrick Garland nomination was unprecedented?

It would be difficult to believe otherwise given the coverage. And yet, did you know that of all Supreme Court nominations thirty-four of them, nearly a quarter, were not seated? Of those thirty-four, twenty-two did not even go up for a vote.

That’s right, most of the time, when Supreme Court nominees have been rejected a vote was never held.

So how could journalists get away with calling McConnell’s act “unprecedented?” Because announcing ahead of time that you would not hold the vote was unprecedented. So a reporter could accurately say “In an unprecedented act Mitch McConnell announced they would not hold a vote on Merrick Garland.” And it would in fact be technically true. But that’s because such a thing had never been announced, not because such a thing had never been done. 

It had. A lot.

But when Mitch McConnell refused to hold any hearings or meetings with Garland, he deprived the Washington media of the stories that feed the interest Supreme Court nominations brings. Something had to feed that vacuum. 

And in trying to do their job, meet the interest, and write the most engaging stories about the events as possible, the narrative of “unprecedented” obstruction took on a life of its own. 

The humdrum facts were not a compelling enough narrative. Nor are the actual details of how and why the court looks the way it does now. 

In the most basic sense, the composition of the Supreme Court looks about the way we should expect it to. The Senate is charged with voting on Supreme Court nominees. Since the Clinton administration, the Senate has had a Republican majority about two-thirds of the time. We should not be scandalized that the Supreme Court now has a 6-3 conservative tilt. 

Social conservatives who hoped for change on the Supreme Court in the wake of Roe v. Wade have worked for forty years focusing on state-wide races. They availed themselves of the democratic process, and they won. Over and over again.

If they want more influence over the court, they should do it at the ballot box.

By design, the Supreme Court should not shift in the winds in response to the electoral will. But it should respond to generational shifts. And that is what has happened. But the Democratic party led by the Biden administration now is playing with the idea of using its temporary narrow minority to take advantage in the courts as well.

Prominent Democrats have said it’s time to stop “conceding the Supreme Court” to Republicans. But they’ve done no such thing, they’ve simply lost the Senate races that matter. And if they want more influence over the court, they should do it at the ballot box by winning more Senate races.

But could it be that the current court is so partisan, that unusual emergency acts must be taken? The evidence doesn’t seem to suggest so. Some have suggested that the Supreme Court is partly responsible for saving democracy after the last election, in favor of the Democratic party (appropriately). Neal Gorsuch penned the opinion significantly expanding LGBT+ rights. John Roberts wrote a ruling striking down abortion restrictions.

Democrats aren’t asking for a fair chance at the court, they’re asking for an unfair chance. They are toying with the idea of expanding their power over the judicial branch to eliminate crucial checks and balances. 

Expanding the Supreme Court is a bad idea, based on a dishonest foundation laid by a media anxious for a story. Expanding power by taking over the courts is a tactic familiar to authoritarian regimes—as is justifying it by increasing resentment against the opposition. 

Furthermore, if Democrats decide to break this latest norm, and Mitch McConnell proves wily again and takes advantage of the new norm like he’s done the last two times, what is the next norm they will seek to break? Will they increase the size to seventeen, twenty-five, One-hundred-ninety-seven? There are only so many norms left that can be broken before the system becomes unstable. 

One can hope that the Biden administration’s efforts to start a “commission” is merely to appease the far-left supporters that helped him get elected, without any real intention to move forward. But it treads on dangerous ground. And it threatens his own broader coalition, long-established democratic norms, and the rule of law itself. Biden should shut down his commission and threaten to veto the bill expanding the Supreme Court.

About the author

C.D. Cunningham

C.D. Cunningham is the managing editor of Public Square magazine. After graduating from BYU-Idaho, he studied religion at Harvard University Extension. He serves on the board of the Latter-day Saint Publishing and Media Association.
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