Jurisprudence

A Political Scientist Explains Why Democrats Must Pack the Courts to Restore Democracy

The founder of 1.20.21 explains how the courts can become a winning issue for progressives in 2020.

Supreme Court photo of sitting justices including Justice Anthony Kennedy, and four more cutouts.
Photo illustration by Slate. Photo by U.S. Supreme Court.

It’s easy to get incensed about how Republicans are remaking the judiciary, but it tends to happen in waves. Three weeks ago, Democrats were beside themselves that Brett Kavanaugh was confirmed to the Supreme Court without a meaningful investigation of sexual assault claims against him. Last week, Republicans on the Senate Judiciary Committee held a hearing to confirm federal court nominees while the Senate itself was in recess. Democrats, who thought they had struck a deal with Republicans to put this process on hold until after the midterms, were not present to vote on nominees such as Allison Jones Rushing, who was evaluated for a lifetime appointment to the United States Court of Appeals for the 4th Circuit. She is 36 years old and has never been a judge. And this week, Democrats are bracing for unprecedented vote suppression in the upcoming midterms, something that has been enabled by Supreme Court rulings in voter fraud and race discrimination cases.

The answer to any question about why Republicans are pushing judges through to lifetime office without scrutiny is a simple “because we can.” What Democrats can do about it is more complex. “Vote,” seems to be the main answer, even as the franchise has been limited by the Supreme Court in just the last term. But in recent weeks there has been a surge of serious legal scholars proposing real reforms to the courts. Sober constitutional thinkers are urging Democrats to find the resolve to pack the courts (here and here) push for term limits (here and here) and to just generally begin to burn all the norms and conventions around the courts to the ground. (here and here). These proposals seem to find traction for a moment, but by and large Democrats are inclined toward stunning conservatism around the Supreme Court, with a good amount of possibly misplaced reverence for the court’s perceived role as a counter-majoritarian check in fraught times.

Last week, however, a project seeking to recapture the federal judiciary was launched with an eye toward keeping this issue at the front and center of progressive politics. The project, named 1.20.21, launched last Wednesday, and among other goals, it seeks to expand the U.S. Supreme Court by four justices in 2021, and add dozens of seats to the lower federal courts in the coming years.

The effort is run by Aaron Belkin, a political scientist from San Francisco State University, who has spent the last two decades tracking and influencing public opinion around “don’t ask don’t tell” and the ban on transgender service members. He is joined by Sean McElwee, the digital activist who created the #AbolishICE hashtag. Harvard Law School’s Mark Tushnet chairs the campaign’s advisory board and Harvard’s Laurence Tribe also serves on their board. All of this makes me think it actually has a chance of succeeding. So, I spoke with Belkin via email about polling, public opinion and reforming the Supreme Court. (Full disclosure: Belkin and I did debate together in college.) A lightly edited version of our conversation is below.

Dahlia Lithwick: The only thing most Americans know about court-packing is that it almost tanked FDR’s presidency. In fact, even tentative conservative efforts to pack the federal courts were condemned across party lines just last year. Isn’t even the idea of court packing the universally acknowledged third rail of judicial politics?

Aaron Belkin: I’ll answer your question in the context of your reference to “Democrats … proposing … to just generally begin to burn all the norms and conventions around the courts to the ground.” It is not possible to begin to burn those norms and conventions because the Republicans have already burned much of the judicial house down.

During President Obama’s first term, the GOP arguably blocked more lower court appointments than were blocked in U.S. history. Then they stole a Supreme Court seat. Then multiple ostensibly moderate GOP leaders like the late Sen. McCain said that if Hillary Clinton were elected, they would fix the number of Supreme Court justices at eight throughout her term. Then they leveraged procedural abuses to confirm Brett Kavanaugh. And, of course, there’s a much broader field of norms of governance that the GOP has shredded and that are not directly related to the courts. So it’s important to contextualize proposals to expand the court within the normative destruction that has already taken place.

As you observe, court expansion was a third-rail topic as long as both parties behaved relatively fairly and honorably in the nomination and confirmation process. At this point, however, the sedimented weight of GOP judicial misconduct has prompted a range of progressive thought leaders, including Congressman Ro Khanna, to endorse court expansion in recent weeks.

So, on the one hand I agree with you that there hasn’t been much of a national conversation about expansion (and that’s why our new project is needed—to amplify the conversation).
On the other hand, the discussion has taken off quickly; there is widespread recognition that democracy cannot function when one of the major political parties steals courts; and there is growing recognition that Democrats can and must do something about it.

One final point is that the lessons of FDR’s efforts may not be as straightforward as often assumed, as important differences distinguish then and now. In particular, FDR was reacting to terrible jurisprudence, not judicial theft.

Dahlia Lithwick: Conservative voters prioritize the courts. Progressive voters do not. This is one of those other seemingly universally acknowledged truths you are trying to overcome. I have a lot of theories for this, but I’d love to hear yours. Why do progressives tend to be so unwilling to rank the courts as a top voting priority?

Aaron Belkin: Polling data show that Democratic politicians tend to talk about the court in positive terms, often emphasizing Brown v. Board of Education, Roe v. Wade, and more recent gay rights jurisprudence culminating in Windsor and Obergefell. Republican politicians, by contrast, whip up their base by constantly pointing to decisions conservatives detest. So in this case, voters’ attitudes and priorities may reflect opinion leadership.

But that begs the question as to why Republican politicians implicate the courts in their strategies for enraging their base. I would argue that this is a story about the power of capital. The greed wing of the Republican party (donors like the Koch brothers and politicians like Paul Ryan) can’t attract voters by promising deregulation and tax cuts for the rich. So, the greed wing uses scapegoating to manufacture paranoia, which is effective at driving GOP turnout. The targets shift around, with some elections emphasizing immigrant gang members, others transgender people in the bathroom, others uppity women, plus the constant through-line of black crime. Even though the emphasis of scapegoating shifts, the recipe is always the same: The greed wing of the party incites paranoia to attract voters.

It turns out that controlling the courts while also demonizing them is an important part of this strategy. Control of the courts delivers jurisprudence like Citizens United that promotes the interests of capital, in other words, corporations and elites. And demonizing the courts when they afford even minimal protections to minorities is helpful for stoking paranoia. Consider, for example, the use of Grutter v. Bollinger to incite rage about affirmative action.

So, capital (eg the Koch Brothers) has a strong incentive to create and invest in NGOs like the Federalist Society to secure control over the judiciary and bullhorns like Fox News to talk about the courts in ways that inflame paranoia.

Dahlia Lithwick: The paradox here of course is that you want to use public polling data and activism to foster energy and enthusiasm about the most staid and predictable (and still popular!) branch of government. Even the liberal justices have rallied around Brett Kavanaugh and the institution itself in recent days, with Justice Sonia Sotomayor urging that the high court is going “to let these times pass.” What do you do when you look to be trying to demystify and in fact politicize the one branch of government that needs to stay mystified and apolitical in order to maintain public legitimacy?

Aaron Belkin: Public policy should be based on fact rather than myth, and in this case, there are two truths that should play a more prominent role in national conversations: (1) Republicans stole the courts, and (2) the courts have spent more than a generation promoting the interests of corporations and elites at the expense of people of color, women and workers. (It may also be worth mentioning that in some cases, the court has relied on radical and unpersuasive reasoning such as the notion in Shelby that the Voting Rights Act isn’t needed because it has worked.)

If the court wants to shore up its own legitimacy, it has the capacity to do that. If Republicans want to shore up the court’s legitimacy, they can acknowledge their thefts and endorse policies such as court expansion that nullify those thefts. Democrats can’t be held (or hold themselves) unilaterally responsible for maintaining the integrity of the judiciary, while Republicans and the court itself undermine integrity.

Dahlia Lithwick: How do you propose to break through the relentless media fog of drama and distraction to keep public interest sustained on the courts? Do you have any reason to believe that the outrage around the Kavanaugh hearings can last into the midterms and on into the 2020 election?

Aaron Belkin: I think you’re asking about two related but partially distinct phenomena, both of which I’ll address below. In terms of public interest, I don’t think the issue is whether discontent about the Kavanaugh hearings can be sustained. Rather, I think the issue is that the progressive base understands that (1) Republicans stole the Supreme Court; (2) judicial theft is embedded in a range of anti-democratic practices such as voter suppression, extreme gerrymandering, dark money in politics, and lying; (3) the cumulative effect of relentless cheating is that the GOP has rigged the system; (4) one result of relentless cheating is that government is unable to solve pressing problems like health care; and (5) democracy is seriously at risk.

Our job at the 1/20/21 Project is to try to make sure that during the political campaigns that will span most of the next two years, conversations about the five points above include consideration of what to do about the courts. As well, we need to remind the public that aside from a few rulings such as Obergefell, the Supreme Court has spent more than a generation injuring people of color, women and workers. It is certainly true that candidates tend to prefer discussions of kitchen table issues like health care over procedural conversations about how to fix democracy. But I think there is sufficient concern about the precariousness of our democracy that there will be room for discussion of the courts during the forthcoming campaigns.

As for the question about media strategies, my colleagues and I spent the past 20 years learning how to use state-of-the-art research to help ensure that policy conversations are based on evidence, not emotion, and our team played a role in informing public opinion during two long-term national debates (concerning “don’t ask, don’t tell” and then transgender military service.) So, we’ll apply the lessons we learned during these two debates to the conversation about the courts. Here are a few examples of research and research translation that we are planning:

(1) studies of injuries that the courts have inflicted on people of color, women and workers;

(2) video testimony by people of color, women and workers who have been injured by courts;

(3) studies of the courts’ role in promoting the interests of corporations and the elite;

(4) polling data about whether the public supports court expansion;

(5) Outreach to political candidates to make sure that those running for office understand various options for judicial reform;

(6) Op-eds and editorial board meetings;

(7) Field work (boots on the ground) in Iowa and New Hampshire to discuss court expansion with voters;

(8) Digital outreach, using the same social media strategies that elevated “Abolish ICE” to national prominence;

(9) and town hall meetings and public debates about court expansion.

There are three more important points to make about these strategies. First, I was very proud during our work on “don’t ask, don’t tell” and transgender military service that people who opposed inclusive policy used our research to support their arguments. The reason is that we published all of our findings, not just those findings that supported one political perspective. We’ll take the same approach to research about the courts.

Second, much of the research and research translation mentioned above has already been done, so you could ask, “why do you need an organization to ask research questions that have already been asked?” The answer is that there’s a big difference between a few scholars knowing something and everyone else knowing it. When we started our work on “don’t ask, don’t tell,” even the military’s own scholars had already published studies showing that gays and lesbians don’t undermine the military. It still took a decade of additional research to drive that point home in the court of public opinion.

Finally, the list of research and research translation activities illustrates why you can’t just rely on thought leaders to publish op-eds if you want to inform a national conversation. You need organizations to amplify the conversation systematically and persistently. That’s the rationale for our new project.

Dahlia Lithwick: Talk about some of the other reforms out in the ether. Term limits, restoring the filibuster, limiting the jurisdiction of the federal courts? Can’t they achieve what you seek to do but in a less disruptive way?

Aaron Belkin: Democracy cannot work when a major political party steals courts, and that’s just what Republicans have done. The Republicans stole the courts and Democrats must “un-steal” them. Yes, a robust national conversation about various reform options is needed. And yes, there is a strong case to be made for some of the options. But un-stealing the courts is the only viable path to nullifying and penalizing Republican misconduct. Expansion, in other words, is the only option that imposes a proportionate political penalty for theft.