Democrats' terrible bluff on the Supreme Court

Democrats have very limited options for restoring liberal dominance on the Court, no matter how aggressive they become

A donkey playing poker.
(Image credit: Illustrated | iStock)

At the end of the 16th century, the advancing age of Queen Elizabeth I posed a throne-shakingly serious problem for England's future. Her reign had been largely peaceful and notably prosperous, and would be looked back upon as a golden age by future generations. However, since she had no children, it was not certain who would succeed her — and rival claims to the throne had previously led to a ruinous civil war that only ended with the accession of Elizabeth's grandfather, Henry VII. Anxiety that history could repeat itself was widespread, and can still be read between the lines of plays like Henry V and Hamlet that Shakespeare wrote late in Elizabeth's reign.

Fortunately, we live in a modern democracy. Our government is elected by and accountable to the people. Our political system could never be brought to the brink by the untimely — but long-expected — death of a single powerful woman.

Oh, wait.

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Justice Ruth Bader Ginsburg was a legitimate hero to millions of Americans, a jurisprudential giant and a model for reasoned liberalism. She would be deeply mourned no matter what the circumstances, and whoever was likely to replace her.

But the circumstances, of course, are anything but calming to those who venerate Ginsburg's legacy. If President Trump follows through and nominates a successor within the next few days, and if that nominee is confirmed, the Supreme Court will tilt decisively to the right because a Republican Senate refused to consider a Democratic president's nominee in an election year; then a Republican won the presidency despite losing the popular vote; and then the same Republican Senate leadership completely reversed their position from four years ago, approving a Republican appointment to the Court even though the election is well underway. It's hard to imagine a set of circumstances better calculated to undermine the legitimacy of the Court with liberals.

So does that mean the prospect of civil war — or, at least, a further escalation of the legitimacy crisis via packing the court with liberal justices the next time Democrats hold power — is real? I don't think so. In fact, I think the Democrats have very limited options for restoring liberal dominance on the Court, no matter how aggressive they become. The reason is two basic asymmetries between Democrats and Republicans, liberals and conservatives: One political, and one ideological.

The political asymmetry relates to the structure of American government — specifically, the make-up of the Senate. Over the course of the past 20 years, the GOP has grown more and more dominant in rural areas, while Democrats have grown stronger in urban areas. This has made it tougher for Democrats to win the Electoral College, but it has created truly monumental challenges for winning and holding the Senate. Of the top 10 most urbanized states in the country, eight — New York, California, Nevada, New Jersey, Rhode Island, Illinois, Maryland and Massachusetts — are already represented solely by Democratic senators, and they may be joined by two more — Colorado and Arizona — after this election. There's very little room left for Democrats to expand their margins. By contrast, the 20 senators from the 10 most rural states in the country count only three Democrats and two independents among their number. Even if Democrats win multiple rural-state elections this year in Maine and Montana, Alaska and Iowa, Kansas and South Carolina — and they are unlikely to win most of those contests — they'll be vastly outnumbered by rural-state Republicans.

As a consequence of the Senate's disproportionate representation of less-urbanized states, any Democratic majority is dependent on winning not only in blue and purple states but in red states. By contrast, Republicans can hold a Senate majority based solely on red and purple states. Which means, in turn, that the median Democratic senator is likely to be well to the right of the median Democratic voter — particularly so on issues where rural voters disagree with urban voters. And the Court, inasmuch as it serves as a proxy for conflicts over culture, religion, and identity, is one of those issues. Indeed, not only are rural states to the right of the rest of the country on cultural questions in general, but on abortion specifically they also exhibit more intensity. Anti-abortion voters with restrictive views are far more likely to vote on the issue than voters with more liberal views. This asymmetry decisively shaped the last Senate election in 2018, a “blue wave” year in which Democrats won very substantial gains in the House of Representatives. Democrats not only lost one Senate seat on net that year, three Democratic incumbents lost their bids for re-election, in Missouri, Indiana and North Dakota. A major reason they lost was their votes not to confirm Brent Kavanaugh to the Supreme Court.

That doesn't mean that if Trump and Senate Majority Leader Mitch McConnell push this nomination through it won't have a negative impact on Republican chances to hold the Senate. Cory Gardner of Colorado, Martha McSally of Arizona, and Thom Tillis of North Carolina cannot plausibly win re-election without the enthusiastic support of conservative Republicans, so I expect them to vote to confirm if it comes to a vote, and yet those votes could cost them their seats. But even if it does, new Democratic Sens. John Hickenlooper, Mark Kelly, and Cal Cunningham would be reluctant to embrace any radical move, like court packing, that would be likely to energize opposition. The same is even more true for Democrats representing even redder states like West Virginia. For that reason alone, the threat to engage in such tactics rings hollow.

It rings hollow for a deeper reason, though, and that is ideological asymmetry. Liberal Democrats view the Courts as an essential bulwark of individual rights. That view is hardly limited to abortion — it extends to anti-discrimination, to due process, and most especially these days to voting rights. In these areas, the Democrats want a strong Court that isn't afraid to overrule the elected branches. And a strong Court means a respected Court, one that is widely viewed as legitimate and that elected officials would pay a political price for crossing. That view of the Court, though, is incompatible with remaking the Court in a blatantly political manner, which is precisely what court-packing would do.

Of course, this is what Republicans are doing to the Court right now. But that outcome may suit them better. Yes, conservative Republicans have their own issues where they want a strong and activist Court: on gun rights, on religious freedom, and especially on economic rights. No party or movement that championed repeated lawsuits to strike down ObamaCare can plausibly claim to favor a Court that is deferential to the elected branches. Nonetheless, on the key issues that animate popular conservative enthusiasm for remaking the Court, many would be satisfied by a Court that was more deferential, or more under the thumb of the elected branches. A conservative Court that refused to strike down restrictions on abortion, refused to expansively interpret equal protection, refused to overturn egregious gerrymanders, and also refused to strike down restrictive federal gun laws wouldn't be giving the conservative movement every win they want — but it would be giving them a heck of a lot.

This is a fundamental change from the 1930s, the last time a Democratic administration threatened to pack the Court. The Court had issued a series of 5-4 decisions striking down a variety of New Deal economic legislation, often on grounds that they regulated economic activity that could not plausibly be construed as interstate commerce. FDR's threat to expand the Supreme Court may well have convinced key justices to rethink their position so as to preserve the Court's independence and integrity. For years after, the Court was far more deferential to the elected branches. If John Roberts had struck down ObamaCare, a threat to pack the Courts might have had an efficacious impact in changing his mind around future liberal legislation. But Roe v. Wade itself restricts the action of state governments; it is an example of the Court overruling the elected branches. So threatening the Court's independence, through packing or otherwise, in order to preserve a woman's right to abortion would require the intellectual contortion of politicizing the Court on the one hand while depending on its continued mystique to cow the elected branches on the other. How exactly is that supposed to work?

If Democrats tried to pack the Court, Republicans could respond by packing in turn when they next won a majority. But they could also respond by nullification — i.e. red states could decide a federal ruling is unconstitutional and simply refuse to comply — as happened in the 1830s. That would impend a far deeper crisis of legitimacy, the resolution of which would be imperative for both parties — and for that reason would likely mean a compromise far friendlier to Republicans than what many liberal Democrats want from the Court. If the past is prologue, re-establishing federal authority would almost certainly require appeasement of the aggrieved states, which would mean scaling back the Court's scope of intervention in their affairs. And while the delegitimization of any branch of government is something that should give temperamental conservatives pause, the fact that the result would be far more obviously and directly detrimental to liberal hopes gives them ample reason to call Democrats' bluff in this case. That's how as temperamentally conservative a commentator as The New York Times' Ross Douthat can wind up saying to liberals, in so many words: Go for yours.

If Democrats want to fight back, then, they need to present a more credible set of carrots and sticks. There are Republican senators who still blanche at the prospect of a full-blown crisis of legitimacy. Chuck Grassley of Iowa is one; Mitt Romney of Utah is another. What can the Democrats offer them that they could sell to their own voters as a better, stabler deal than momentary advantage, even in the pursuit of a generations-long GOP goal?

As for the stick, the only threat that matters to politicians is the threat of losing. So making credible threats means figuring out how to win — and hold — seats in rural states. The Democrats have an extraordinary number of chances to do that this year. If they can, and can make those wins stick, it just might get the Supreme Court's attention, no matter who is on it.

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Noah Millman

Noah Millman is a screenwriter and filmmaker, a political columnist and a critic. From 2012 through 2017 he was a senior editor and featured blogger at The American Conservative. His work has also appeared in The New York Times Book Review, Politico, USA Today, The New Republic, The Weekly Standard, Foreign Policy, Modern Age, First Things, and the Jewish Review of Books, among other publications. Noah lives in Brooklyn with his wife and son.