Jurisprudence

This Supreme Court Term Will End With Either Catastrophe or 13 Justices

If Amy Coney Barrett is seated before the election, Democrats will need to act quickly.

The inside of the Supreme Court.
Fred Schilling/Collection of the Supreme Court of the United States/Getty Images

When Republicans gathered at the White House on Sept. 26 to celebrate the nomination of Amy Coney Barrett to the Supreme Court, they placed themselves at the epicenter of a likely superspreader event. Several senators in attendance—in addition to the president, the first lady, Chris Christie, and multiple GOP operatives—reported COVID-19 infections in the following days. Trump remains hospitalized while key Republicans on the Senate Judiciary Committee are in quarantine. Yet on Friday, Senate Majority Leader Mitch McConnell insisted that he will move “full steam ahead” with confirmation hearings to install Barrett on the Supreme Court, even if that means endangering themselves and Senate staff. McConnell understands they’ll have to act fast to make it happen.

Democrats, meanwhile, have been slow to catch up. At the first debate between Joe Biden and Donald Trump, Biden refused to say whether he’d expand the Supreme Court if Republicans confirm Barrett, insisting that the issue is a “distraction.” He’s wrong. Broaching the conversation about systemic reform after the election will be too late. And the coming Supreme Court term, which begins Monday, reflects just some of what’s at stake, this week, this month, and in the months ahead. The debate about structural changes to the court can’t wait until a hypothetical future in which everything has settled down. That future has already vanished.

On the docket just in the weeks to come, there is a blockbuster case that seeks to put a stake through the heart of the Affordable Care Act, in the midst of a pandemic—a challenge Barrett would seem to favor. Also on the docket is a case about a Philadelphia foster care agency that refuses to work with same-sex couples and claims that it constitutes religious discrimination if the city refuses to subsidize it with taxpayer dollars. In case that weren’t enough, the court may also hear a case that could strip same-sex couples of equal parenting rights. Moving from religion to guns, the court has been itching to expand the Second Amendment, and Barrett has made plain that she would go further than even most conservative judges to permit guns. The court will also hear a case that could kill off what’s left of the Voting Rights Act. Plus, there are multiple reproductive freedom cases hurtling toward the court, many from states that have already overruled Roe v. Wade in practice: outright abortion bans, sham regulations designed to shutter clinics, medically unnecessary restrictions on medication abortions. All that, plus an election in which the court may pick the next president and further restrict voting rights. And did we mention a census case that could strip congressional representation from states with large immigrant populations?

If a 6–3 conservative majority decides all these cases, they would swiftly transform American life and put millions in danger. By the end of this term, SCOTUS could revoke more than 20 million Americans’ health insurance and legalize odious discrimination against same-sex couples. It could not just greenlight abortion bans but allow states to prosecute women who terminate their pregnancies. It could abolish dozens of states’ gun safety laws, further flooding our communities with weapons of war. And as the cherry on top, the court could throw the election to Trump, then rubber-stamp his plan to manipulate the census to further entrench Republican power in Congress.

In the face of these impending calamities for democracy, Democrats have a binary choice. They can accept the legitimacy of a court whose membership has been yanked far to the right by Republicans’ anti-democratic schemes. Or they could add seats to the court and spare the country from the Sarlacc pit into which it’s poised to tumble.

Democrats are hesitant to talk about expanding the Supreme Court, preferring to focus on the fight against Amy Coney Barrett. But her confirmation now seems all but inevitable, and progressives are urging Democrats to start considering their counterattack. Senate Minority Leader Chuck Schumer has said that “nothing is off the table next year” if Republicans ram Barrett through the Senate, a vague gesture toward at least the possibility of court expansion. Sen. Joe Manchin, a moderate Democrat, has disavowed it altogether. Joe Biden has tried to split the difference: He generally refuses to talk about court expansion but has implied that he opposes it—for now. “We need to deescalate, not escalate,” Biden said on Sept. 20. “That’s why I appeal to those few Senate Republicans, the handful who really will decide what happens.”

Because court expansion remains relatively unpopular among the American public, a cautious approach makes sense in this political moment. But in the longer term, it is a recipe for disaster. Say Democrats decide against expanding the court after Barrett’s confirmation, instead choosing to pass their progressive agenda and then wait a few years to see whether the new 6–3 conservative majority strikes it down. Due to the slow pace of litigation, the Supreme Court might not consider the constitutionality of Democratic measures until Republicans have retaken the Senate.

Consider the Affordable Care Act saga. The Supreme Court first ruled on the ACA’s constitutionality 27 months after it was signed into law. It came one vote away from invalidating the entire law. And while the justices let most of the law survive, they kneecapped its most crucial component, Medicaid expansion, by making it optional, a compromise that has cost thousands of lives. More than 10 years after the law’s passage, a dozen states still haven’t expanded Medicaid. Then, in 2016—six years after the ACA’s passage—the Supreme Court came two votes away from sending the law into a death spiral. Today, the court may yet again be on the brink of eradicating the entire act. Judicial time is glacial, yes, but it also means that—like light from a faraway star—what happens in the courts can take years to travel to Earth. But this isn’t starlight, it’s a meteor.

That means that even if Democrats win Congress and the White House, then pass ambitious laws, this cycle will play out over the next few years. Essentially all of their priorities are extremely vulnerable to invalidation at the hands of an ultra-conservative 6–3 court. The Democrats’ bill on ethics, voting rights, and redistricting reform would probably be strangled by this judiciary. Their attempt to grant statehood to the District of Columbia could founder on the shoals of a ridiculous constitutional theory. Any effort to expand the ACA would be suspect, as would efforts to limit carbon emissions. The leading plans to protect abortion rights if SCOTUS overturns Roe v. Wade would get eviscerated by the courts. After years of health care litigation, it is painfully clear that conservative justices will embrace frivolous legal arguments that the vast majority of lawyers find meritless to reach their preferred policy outcomes. This coming term, we will see the beginning of that, with a few strategic defections in a handful of cases, but a steady and marked trend toward clawing back Democrats’ efforts to protect the vote, protect the planet, and expand protections for workers and vulnerable communities. We will see a systematic effort to deregulate big businesses, constrain federal agencies, undo gun control, and loosen protections for women’s health. That is coming and it is coming sooner than you may think.

If Democrats plan to expand the court, then, they have to do it quickly. They must strike before the conservative supermajority has a chance to undermine them. If they wait for sufficient provocation, give this a few years to play out in the judicial branch, they will simply see their agenda torn to shreds by the court two years later, after Republicans have wrestled back the Senate. Court expansion is not a hypothetical response to some future SCOTUS outrage. It is a proportional response to Republicans’ constitutional hardball—and a necessary precursor to any meaningful Democratic reform.

Is there a political cost to announcing that Democrats plan to play constitutional hardball, effective immediately, whether it be scaring off moderate voters or emboldening Mitch McConnell to implement these selfsame ideas if he still controls the Senate come January? Sure there is. But the cost of hanging around for a few years, hoping that statesmanship and comity rise like a phoenix from the ash heap of the Senate is far greater, the equivalent of bringing a sparkly pony to a knife fight. The court is already lost for a generation. Retaking the White House and the Senate in November will do nothing to solve that problem. Bold and big action on court reform on Day One of a new administration isn’t a fanciful hope. It may be the only lifeline that remains.