Democrats Must Unpack the Courts Now

After 6 years of McConnell’s court-packing, we must restore balance to the federal judiciary

Photo by Tingey Injury Law Firm on Unsplash

Unable to win a majority of votes nationally or in most states, Republicans have resorted to gerrymandering, voter suppression and the federal court system to promote their racist, misogynistic, anti-labor, monopolist and pro-billionaire policies.

Because the courts stand as the final arbiters of all law, they’re now openly supporting gerrymandering and voter suppression, from the Supreme Court on down. This has created a crisis for American democracy.

Donald Trump bragged that President Obama “left me 128 judges to fill” as if Obama was just sloppy. The actual number was 105, but Obama didn’t “leave” them; he’d appointed genuinely qualified people, many women and minorities, to fill every single one of those judicial slots, and Mitch McConnell simply blocked them in the senate for the last two years of the Obama presidency.

McConnell even blocked Obama’s appointment of a brilliant Black attorney, Myra Selby, to the Seventh Circuit Court just to keep the seat open for Amy Coney Barrett, a notorious rightwinger and shill for big corporations and antiabortion freaks. McConnell gave Barrett that stolen seat for her first job as a federal judge, and, when Ruth Bader Ginsberg died, he and Trump put her on the Supreme Court.

McConnell also blocked Obama’s appointment of Judge Merrick Garland to the Supreme Court nearly a year before the election so rightwing hack Neil Gorsuch could get the seat instead, as soon as Donald Trump was sworn in.

As a result, Trump and McConnell got over 200 federal judges and three Supreme Court Justices through the Senate, meaning nearly a third of all federal judges were packed into our court system by Trump and virtually 100% of them have been straight and white, and the overwhelming majority men.

This is court-packing on an unprecedented scale, and refusing to even hold hearings on Judge Garland is a naked violation of the Constitution itself.

The fruit of conservative court-packing has, among other things, been a boon for Republicans who want to make it harder for people to vote, targeting young, minority and Social Security voters.

It started in a big way in 2013 with the Shelby County case when Chief Justice and former Reagan administration official John Roberts essentially ruled that racism was dead in America and therefore large parts of the Voting Rights Act were no longer necessary.

Immediately after that ruling, Republican-controlled legislatures in Texas, Alabama, Mississippi, North Carolina and Florida changed their voting rules to make it harder for young, low-income and Social Security voters to cast ballots.

In the 2019 case Rucho v Common Cause, five conservatives on the Court overruled the four Democratic appointees to say that gerrymandering was something that the Courts could no longer do anything about if those doing the gerrymandering didn’t explicitly mention race as their motivation.

In her dissent, Justice Kagan wrote, “The gerrymanders here — and they are typical of many — violated the constitutional rights of many hundreds of thousands of American citizens.”

Building on that case in 2020, Reagan appointee Judge Frank Easterbrook on the 7th Circuit Court found that Republican lawmakers “are entitled to consider politics when changing the rules about voting.”

Want to do things to make it harder for Democratic-leaning voters to cast their ballots? “No problem,” the court essentially said.

All over the country, similar cases are now going in favor of GOP voter suppression efforts, from making it difficult for Florida ex-felons to vote to endorsing gerrymandering that causes states like Wisconsin to send a majority of Republicans to their state legislature and the US Congress even though the GOP congressional candidates get a minority of votes in that state.

Similarly, in 2018 the 5–4 conservative majority on the Supreme Court dealt a huge blow to the ability of labor unions to function, as well as decriminalizing Ohio’s massive voter suppression efforts leading to hundreds of thousands of mostly Black voters being removed from red-state voter rolls nationwide.

Another 5–4 all-conservative vote on the Supreme Court upheld Trump’s race- and religion-based Muslim Travel Ban. They then rejected an attempt by Wisconsin’s Democratic governor to expand voting rights during the pandemic.

In 2010, the conservative majority on the Court asked the Citizens United group to drop their case and re-argue it much more expansively so they could reaffirm their earlier court-created doctrine that corporations are “persons” and when billionaires own politicians it’s not corruption or bribery but mere “free speech.”

This wasn’t the first time the Supreme Court and much of the rest of the federal judiciary had become openly and nakedly partisan. And if the Biden administration and Democrats in Congress unpack our courts, it won’t be the first time the Article 3 branch has been reorganized to make it more representative of the majority of Americans.

In 1863, Abraham Lincoln wanted to get a solid vote on the Court against slavery, so he and his Republican colleagues who controlled the Senate and the House increased the number of Circuit Courts and, by extension, the number of Supreme Court justices all the way up to 10.

Two years later, when Lincoln was assassinated and slaveholder Andrew Johnson became president, Congress reduced the size of the Court to seven justices specifically to deny Johnson an opportunity to appoint any justices.

After Johnson left office, Republican President Ulysses Grant oversaw Congress increasing the size of the Supreme Court back up to nine.

After he lost the brutal “Revolution of 1800” election, John Adams and his Federalists, during the lame duck session, passed the Judiciary Act of 1801 that dropped the number of justices on the Supreme Court from six to five to deny the incoming President Thomas Jefferson an appointee.

President Jefferson and his victorious Democratic Republicans in Congress increased the size of the Supreme Court by two, from five up to seven justices, to rebalance the federal judiciary that Adams had packed with rightwing Federalists on his way out of office.

During times of national crisis, changing the composition of the Court by changing the number of justices has been done repeatedly. Court packing and unpacking have a long and well-accepted history in America.

Mitch McConnell spent six years packing the federal courts, and, as a result, the nation is calling out for rebalancing.

The federal bench overall must be expanded to deal with its current workload, and the Supreme Court should be expanded by at least four members so it will better reflect the American electorate and so it can deal with a broader spectrum of cases.

To put it simply, it’s time for Democrats to unpack the federal judiciary and restore fairness and justice to our justice system.

America’s #1 progressive talk show host & NY Times bestselling author. Thom’s latest project is the “Hidden History” series of books.

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