Court Expansion and the Restoration of Democracy: The Case for Constitutional Hardball
Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path for restoring the United States political system requires Democrats to modify Senate rules that allow obstructionism, expand federal courts, and un-rig the political system. Unless Democrats enact all three parts of this agenda, democracy probably cannot be revived. Expanding the courts probably will be necessary to un-rig the system unless the current Supreme Court tolerates democratic revitalization, an unlikely prospect. To pass legislation to un-rig the system and expand the courts, however, Democrats will need to modify the Senate rules. Finally, if Democrats pursue modest good-government initiatives but forego aggressive reform, they will fail to un-rig the system. Thus, Democrats need to enact all three parts of the democracy agenda, not just one or two. Legal experts fear that if Democrats play constitutional hardball, Republicans will respond in kind. Court expansion, for example, is expected to yield a race to the bottom that could destroy the independence of the judiciary and the rule of law more broadly. The argument fails to persuade, however, because the Supreme Court has become a plainly partisan institution, and because the GOP has already broken norms to steal the Court. Expansion is the only way to restore the Court, and re-balancing the Court is a necessary component of democratic restoration. If the GOP steals the Court again, the country will not be any worse off than today. Given demographic trends, the 2020 election may be the Democrats’ last opportunity in the foreseeable future to eke out a Senate majority while capturing the White House and retaining control of the House of Representatives. If they do so, and if they enact the proposed agenda quickly, democracy will be restored and the political playing field will be leveled. Otherwise, democracy will remain part of America’s history, and not its future.
Court Expansion and the Restoration of Democracy: The Case for Constitutional Hardball,
2019 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol2019/iss1/2
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