A High-Stakes Plan to Save the Court

The liberal justices should bring on the inevitable conservative revolution.

The top front of the Supreme Court building.
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Barring a dramatic twist, Amy Coney Barrett will soon be confirmed to the Supreme Court. As a justice, she will cement a 6–3 conservative majority poised to wipe out decades of progressive precedent and transform American life as we know it. The Democratic Party has one powerful tool at its disposal to counteract Republicans’ partisan capture of the judiciary: court expansion. But Democrats have not yet committed to this course of action or done the work to convince the public that a drastic move is necessary.

If the stakes of the Barrett battle haven’t resonated with the public, it may be because Chief Justice John Roberts has carefully kept his court out of the political spotlight in recent years. A vaunted institutionalist, Roberts has handed down plenty of conservative decisions while joining the liberals just enough to preserve the court’s image of impartiality. A few of his Republican-appointed colleagues have occasionally joined in these efforts. There is thus good reason to believe that if Barrett is confirmed, the jurisprudential bloodbath will not begin immediately. Rather, the new conservative majority may slow-walk the revolution, putting off the blockbuster decisions to avoid backlash.

Should Democrats win the presidency and Senate, but drag their feet on court reform, the political will might arrive too late. The Supreme Court will likely wait to strike until the threat has passed; after all, Republicans can still easily win back the profoundly undemocratic Senate in the next few years. If that happens, Democrats will be helpless to fight back.

The liberal justices can frustrate this timeline. While they’re poised to lose all influence over the outcome of cases, they will still have a real impact on which disputes SCOTUS will take in the first place. If they force the court to consider hot-button issues straightaway, they could thwart any conservative efforts to draw out the revolution under the radar. The current term could end in disaster: a fatal blow to the Voting Rights Act, legalized discrimination against same-sex parents, a rollback of marriage equality, 23 million Americans robbed of their health insurance. It would be brutal, but it may be the shot in the arm that progressives need to enact court expansion before Republicans wrestle back the Senate.

This strategy rests on a hugely important aspect of Supreme Court procedure. For the court to take up a case, at least four justices must vote to hear it. The court receives about 8,000 appeals each year but usually takes fewer than 80. This near-total discretion over the court’s docket gives the justices a kind of superpower: They can pluck out the cases that will help them push the law in their preferred direction. Justices hunt for ideal cases, known as “vehicles,” that they can use to reach a certain ruling.

For several years, a coalition of justices has kicked away some cases that look like perfect vehicles for conservative decisions. Because these deliberations take place behind closed doors, the public only sees a glimpse of the process. But it’s clear that Roberts and Justice Brett Kavanaugh have periodically joined with the liberals to turn down appeals that get conservatives’ hearts racing. Justice Neil Gorsuch has occasionally sided with them, as well. As a result, the Supreme Court has voted not to hear cases involving guns, abortion, Planned Parenthood, same-sex marriage, and religious liberty. Justices Clarence Thomas and Samuel Alito are less willing to play this game and have voiced their frustration when the other conservatives let a good conservative vehicle go to waste.

It’s not hard to guess why Roberts, Kavanaugh, and Gorsuch sometimes duck big, controversial cases: They are savvy about how best to spend down their political capital. Although these justices are undoubtedly conservative, they aren’t feral cultural warriors. They’re patiently boiling the frog while Thomas and Alito pound their fists on the table demanding cuisses de grenouille. Roberts, Kavanaugh, and Gorsuch will, eventually, eviscerate Roe v. Wade, expand access to firearms, tear down the administrative state, kneecap voting rights, and mandate government funding of religion. But they’ll do it gradually to minimize the kind of backlash that might convince Democrats that the Supreme Court has become an existential threat to their agenda.

All available evidence suggests that Barrett is a far-right jurist whose views seem to align most closely with Thomas’. She also seems to be a shrewd operator, so she may join the less radical conservatives in meting out Republican victories slowly enough to keep court reform at bay. SCOTUS might spend 2021 and 2022 chipping away at abortion access, voting rights, and labor laws. But it won’t drop the hammer until Democrats have lost control of Congress or the presidency, and the conservative majority can rewrite the Constitution without fear of real retaliation from the left.

The liberal minority—now consisting of Stephen Breyer, Sonia Sotomayor, and Elena Kagan—have used their limited influence to try to mitigate the harm. They have consistently voted to turn away high-profile cases that could tee up conservative rulings, as when they blocked the court from taking up Second Amendment cases last term. But in the Barrett era, they won’t be able to keep these cases off their plate indefinitely, and harm mitigation may start to look like harm postponement.

These justices should stop delaying the inevitable and compel the conservative majority to confront the most contentious legal questions of our time, once and for all. For example, many states have already passed total or near-total bans on abortion. Federal courts have blocked all of them as blatantly unconstitutional. For the Supreme Court’s conservatives, the smart move is to turn away these cases, then greenlight less drastic restrictions, like a ban on abortions due to fetal abnormalities. (Thomas indicated his support for such a law in 2019 while his colleagues remained silent.) Though Roe v. Wade still stands, the right to an abortion has been gradually but effectively vanquished in dozens of states as a result of this strategy. The more liberal justices don’t have to let this happen. Instead, they can vote to review these abortion bans this term. If the Supreme Court is prepared to overturn Roe, then it behooves Democrats to get it over with now so they can fight against an actual decision rather than the specter of some looming catastrophe.

Lower courts have been itching to kick off the judicial revolution. As soon as Justice Anthony Kennedy stepped down, federal appeals courts began upholding abortion restrictions that obviously violated Supreme Court precedent. Many conservative lower-court judges, especially those appointed by Donald Trump, are eager to drag the law far to the right as quickly as possible. Trump judges like James Ho act more like Breitbart columnists than jurists, demanding swift and unapologetic implementation of Republican policies. Upon Barrett’s confirmation, these extremists will flout progressive precedent even more brazenly. In doing so, they’ll force the Supreme Court’s hand. If lower courts uphold an abortion ban, the liberal justices will have good reason to demand that SCOTUS review the decision: The country deserves to know if abortion access is a constitutional right or not.

This plan, to be clear, is terrifying. But people who care about preserving and expanding our rights should already be terrified. Liberal advocacy groups regularly beg the Supreme Court not to hear cases that would put progressive laws and precedents on the chopping block. But the alternative is worse. The Supreme Court upheld Democrats’ last piece of major legislation, the Affordable Care Act, by a single vote—more than two years after the bill was passed. By that point, Democrats had already lost control of the House of Representatives. Democrats breathed a sigh of relief. But that decision did not forestall many more challenges to the ACA, including the one pending before the court right now. Even if the justices uphold the law once again, there’s nothing to stop them from eradicating it down the road.

The norms and rights that many Americans take for granted have been slowly eroding for years. There is no sign Republicans are willing to go back to the old rules; why change a winning game? Democrats cannot reverse this process by staying in denial about the conservative seizure of the courts; they can either break the cycle with constitutional hardball or concede long-term defeat. At this moment, they are poorly positioned to expand the court in 2021—too cautious, too easily cowed, too uncertain about the magnitude of the threat. The liberal justices still have the power to make Americans look that threat in the eye. And Congress should welcome a showdown with SCOTUS while it still has a chance.