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Ever since Ruth Bader Ginsburg’s death, congressional Democrats have been boxed in—by President Donald Trump, who is committed to putting forward a new Supreme Court nominee, and by Senate Majority Leader Mitch McConnell, who is committed to giving that nominee a vote. But just because it seems like Dems are cornered doesn’t mean they don’t have any moves left. They can absolutely strike back, if they’re willing to shift some old attitudes about norms and institutions that just don’t apply in the current era. To figure out what the opposition can do next, I spoke with Jamelle Bouie, New York Times opinion columnist and former chief political correspondent for Slate, on Wednesday’s episode of What Next. Our conversation has been edited and condensed for clarity.
Jamelle Bouie: I think we talk about Mitch McConnell as some sort of evil genius. But if you look back at the Merrick Garland blockade in 2016, if you’re looking at this current attempt to fill the seat left by Ginsburg, these are both big gambles. He’s taking a risk, hoping he can keep his caucus unified enough to put a justice on the court and that this doesn’t galvanize Democrats into action. He’s hoping that it doesn’t lead to his party losing the White House and the Senate. If all these things go right, then we’ll look back and say this was a bold, brilliant move. But if they don’t, then we can look back and say this was an avoidable disaster for the Republicans.
So if you take that perspective, that these steps are risks that maybe come with great rewards but also with real costs, then the response is, how do we raise the price of the risk? How do you make it cost even more? I don’t think Democrats think enough about how you make the other side pay for the risks that they’re taking. There are never no moves available. The point at which there’ll be no moves available is when you know the United States is no longer a democracy. But as long as that’s not the case, there’s always going to be some move available. It may not have a high chance of success, but I am a strong believer that in politics you should not bind your behavior by its likelihood of success, because no one ever really knows what’s going to end up being successful or not.
Mary Harris: I’d appreciated some of the writing that talked about how the Republican push to fill this seat reveals a weakness in the Republican Party: They’re slamming something through when no one’s voted for it. I wonder if you agree with that interpretation.
I do agree with that interpretation. These are not the moves of a party that believes it could win popular majorities. This is not something you do if you think that in the next election, in the next several elections, you’ll be able to secure support from the public. This is what you do when you believe the public is against you, that the only way you’re going to preserve your ideological project is by entrenching it in the least democratic part of the entire system.
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You call the judiciary “the least democratic part of the entire system” because of how heavily we’ve come to rely on judicial review—the idea that the Supreme Court is the arbiter of what’s “constitutional” and what isn’t. This is not a power that’s laid out for the court in the Constitution itself. It’s a power that’s been cultivated for years, leading to what you’ve called “judicial supremacy.”
I think if you look at the period since World War II, what you’ve seen is less pushback and contestation and more gradual acceptance of this idea of judicial supremacy. The courts say the Constitution means we all operate within those constraints. We may try to nudge things in the margins, but we accept the basic premise. And although I understand why it would unsettle many people to see that equilibrium disrupted, I think that it is a good thing for it to be disrupted, that we remind ourselves the United States is not actually a judge-ocracy. It’s a popular government. So when popular government ceases to work for those purposes because of one institution, then the right thing to do is push back on it.
What you’re saying is that’s the way it’s supposed to work.
Abraham Lincoln and William Seward, ahead of the 1860 election, blasted Democrats for attempting to basically write slaveholders’ rights into the Constitution. They launched a fierce attack on the federal judiciary in an attempt to lay the ground for reversing this if they were to win office. And they did. They expanded the Supreme Court. They created new circuit courts. They created new states to secure Lincoln’s victory in 1864. This is how politics is played in the 19th century.
But the most famous example of this is FDR. We talk about court packing as if it failed, but it worked. Even if he couldn’t secure a majority among alleged lawmakers, FDR’s threat was credible, and it moved the Supreme Court to back down [from its challenges to New Deal policies]. If there’s a President Joe Biden, if there’s a Democratic Senate, I think this is the move they have to make.
You’ve written that, if Democrats are elected in the Senate and the presidency, one way to deal with the coming conservative supermajority on the Supreme Court is to simply ignore what it says, which seems like a pretty intense move. But it’s happened a lot in our past; in fact, states have done this relatively recently. There was an abortion case this year where Louisiana basically created a law that went against a Supreme Court ruling from just a few years ago. So, questioning the Supreme Court actually isn’t all that rare, but it feels to me like the federal government ignoring the court would be a pretty major step.
Well, when I say “ignore the court,” I think it’s worth being specific about what that means. Take Shelby County v. Holder in 2013. Section 5 of the Voting Rights Act required select states to submit any election law changes for pre-clearance, meaning the Department of Justice had to look them over and make sure they were not violating anyone’s civil rights, and then the states can go forward. The Supreme Court said this was unconstitutional, that it violated some made-up doctrine about how states had to be treated equally. That’s not a real thing that exists, but the court said it does.
The response the Obama administration had was basically, too bad, the court said it was unconstitutional, so it is. But the other response could have been: “On the court’s decision with regard to the DOJ and Shelby County, Alabama, we accept that the court thinks that Shelby County should not be held to the pre-clearance standard, but we do not think this applies to other places. So we are going to accept the ruling in this particular case, but we don’t think it has any bearing on the law.”
With something like this, you’re making a distinction between the court’s ability to settle cases and the court’s ability to bind people to an interpretation. And the basis for making that distinction is that the Constitution doesn’t actually say that SCOTUS is the sole arbiter of what is constitutional. It strongly suggests that other constitutional actors—the president, Congress—can also interpret the Constitution. That’s implicit in the business of lawmaking and executing: They’re making a statement about what they believe is constitutional. Sometimes they’re wrong, and the courts are there to say, hey, that’s not right. But sometimes the courts are wrong, and Congress and the president have to say, hey, that’s not right.
So let’s talk strategy. There’s a lot of talk of the idea that if Democrats win the Senate and the presidency, they should be talking explicitly about adding seats to the Supreme Court. I’m wondering if you think that’s the right place to start. Or do you start with the Senate, which is weighted to be more Republican even though that might not reflect what’s actually happening in the country?
For priorities, I would go in this direction: D.C. statehood, offering referenda to Puerto Rico, the Virgin Islands, American territories writ large over whether they want to be part of the American union or whether they want independence and then, based on the results of that, offering statehood and expanding the size of the House of Representatives, which is the sort of thing that’s been needed for a very long time.
And expanding the lower courts. On a practical level, the United States population has grown by about 100 million since the last time the courts were expanded under Jimmy Carter. So there’s a very real need for more judges at the district and circuit court level. Create more circuits and create more districts—that would have the side effect of basically nullifying most of Trump’s additions to the judiciary. And that can stand as a threat to the Supreme Court, to say that if you stand in our way, we will just add more seats to your lower courts.
Courts probably have to take it up when Democrats make these reforms. They are going to be busy. Do you have any sense that the people in power in the Democratic Party have the stomach for this kind of reform?
I think some of the younger members do. The older members are still struggling to get beyond a world of politics that doesn’t really exist anymore.
I think that, broadly, Americans treat the constitutional order as static: that this is what we got in 1787, and this is what we have. That’s just not true. The government we now have would be unimaginable to the Framers, unimaginable to the people who contracted the Reconstruction amendments. There’s arguably a second framing of the Constitution as a kind of an ongoing process, that each generation can add its own innovations to the constitutional system. I would argue it’s been a long time since we’ve had any innovations of the constitutional system. We’re operating with a set of institutions that were made for that was made for the middle of the century. Part of the problem in our politics right now is that there has not been any real change either directly to the text of the Constitution via amendment or any quasi-constitutional changes, like civil rights legislation. I think Americans need to get into the habit of thinking of all of this as being much more flexible and malleable than they perceive.
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