From The Archives -- R.I.P., R.G.B.

[ Posted Monday, September 26th, 2022 – 17:40 UTC ]

Program Note: Sorry for the lack of a new column today, but I had family visiting and therefore was away from politics for the day. I went looking for a column to run again today and came across this, from a little more than two years ago today. Thankfully the worst of my predictions didn't happen, but things sure turned out a lot worse than the rosiest of my projections. In any case, it's already been a long two years and we're going to have to put up with this situation for a long time to come as well, so here's a look at what started it all.


Originally published September 21, 2020

Supreme Court Justice Ruth Bader Ginsburg now rests in peace.

For the rest of us, there will be no rest and very little peace for the next few months -- of that much we can be certain. Because while the phrase is occasionally overused, it is no hyperbole to say that Ginsburg's death has now left America in what can only be called a true constitutional crisis.

There are all sorts of ways this could play out, ranging from the reasonable to the apocalyptic. At this point, the paths to reasonableness seem few and narrow, while the paths to chaos are much more wide and numerous. It's not even overstating the case all that much to say that we have never been closer to a second civil war in this country.

Consider, if you will, that we are six weeks away from a presidential election, and the sitting president is already calling into question -- in every way he knows how -- the legitimacy of the vote itself. That's unprecedented. Trump is also egging on his followers to commit violence against his political opponents -- which could even mean violent skirmishes at voting locations across the country. Consider also that even if the Supreme Court remains at only eight sitting justices, ties go to whatever the lower courts ruled -- and the Supreme Court gets to pick and choose which cases it takes up. If Trump's nominee is seated before the election, then the court will have a 6-3 conservative majority (or, even being charitable, a 5-1-3 split, with John Roberts as a now-meaningless swing vote).

So what's to stop Trump from declaring himself the winner on the night of the election, then launching dozens of lawsuits which end up in the court he just stacked in his favor? What happens if Joe Biden wins the popular vote by a margin of 10 million votes (and the Electoral College by a similarly-wide margin), only to see his victory overturned by the highest court in the land? And what would happen immediately afterwards, out in the streets? At that point, the prospect of states like California and New York seceding from the Union doesn't seem so farfetched, does it?

Even if this nightmarish scenario does not come to pass, consider what a 6-3 court will mean just in the next year alone: Obamacare overturned. Voting rights gutted even further than they have been. Minority rights likewise gutted. Employee rights eviscerated. Roe v. Wade probably won't be overturned immediately (that will likely have to wait for a better test case to come along), but states will be given the green light to enact any abortion restrictions they please, no matter how onerous or unreasonable. Abortion will thus effectively cease to be a right in the reddest of states. The Census rules changing, so that only citizens and/or legal residents are considered for the decennial congressional reapportionment. Any or all of that could easily happen even if Joe Biden is president. And that's just what could happen in the next year -- without even contemplating what cases the court will choose to decide upon in subsequent years.

That's a pretty pessimistic outlook, I have to admit. But it is not an unreasonable one to consider, at this point. So is there any room at all for optimism? Well, a little, perhaps -- but not much.

The first thing to focus on is the possibility that four Senate Republicans will do the right thing. This is a pretty thin reed to grasp (see: the past two decades), but it could actually happen. We're already at two, and there are a number of other GOP senators who have not committed themselves one way or the other. So picking up two more isn't totally out of the realm of the possible at this point. Perhaps Mitt Romney and one of the Republicans facing a very tough re-election battle will join Lisa Murkowski and Susan Collins in sticking to the precedent the Republicans set in 2016: "We're too close to the election, so let's let the voters have a say." Remember all the sanctimonious high-road-ism the GOP spouted when they denied Merrick Garland's consideration? Remember all those statements of sacred principle, which most Republicans are now completely ignoring in the most flaming bout of mass hypocrisy ever seen on Capitol Hill? Maybe there are two more Republicans left with some shred of self-respect or conscience who will derail this train before it even leaves the station. If Mitch McConnell doesn't have 50 votes, then he can hold all the hearings and floor votes he wants, but there will be no confirmation.

This, obviously, would be the best of all possible outcomes. Then the voters would indeed get to have a say. If Biden wins in a landslide and the Democrats take back the Senate, then he could appoint R.B.G.'s replacement and the court's ideological balance would remain where it was before her untimely death. Things would return to some sort of normalcy. This assumes the 5-3 court doesn't overturn the election result, of course.

While we all wait for Romney and the others to make up their minds, there is one important voice in all of this we have not heard from yet. Chief Justice John Roberts has not weighed in on what should happen next. He may not do so -- Supreme Court justices rarely speak out on political issues, after all. But this is a unique case, because the legitimacy of the Supreme Court itself is what is at stake. And that court will forever be known as "the Roberts Court" -- a fact of which he is fully aware. Roberts knows full well that if half of America considers two of the justices on the court to be illegitimate, then the entire court (and all their decisions) will also be considered illegitimate. Roberts must also be aware of another possible outcome -- Democrats "packing the court" after January, by raising the number of people on it. That would also cause roughly half the country (the other half) to consider the court illegitimate. This is a lose-lose situation for Roberts, plainly. Which is why he might just be motivated to weigh in before any of these things actually comes to pass, especially if his opinion could influence the outcome and avoid the lose-lose situation entirely.

Even if Biden wins and then resists the urge to pack the court, Roberts will face a different sort of dilemma if Trump's nominee is confirmed. Up until now, he has acted as the swing vote -- a valuable check on the worst impulses of the conservatives. Obamacare survived because Roberts voted for it, to give just one prominent example. But in a 6-3 court, Roberts will no longer have this power. The other five conservatives will be able to do anything they please -- and they likely will. This will lead to the situation Franklin Delano Roosevelt faced (the last time court-packing was an issue) -- the country moving leftwards in a big way while the court moves sharply rightwards. This will doubtlessly lead to some decisions that the judgment of history will deem to be both horrific and wildly out of step with the public's prevailing opinion. There won't be any Brown v. Board of Education decisions to celebrate, but there may be a whole lot of Dredd Scott decisions that will later have to be overturned by future Supreme Courts. This will mean the Roberts court will go down in history as fighting against the moral arc of justice.

Roberts, of course, is aware of all of this. So does he really want his namesake court to be held up as a future "worst case" example to first-year law students? This possible legacy might be enough of a motivation for him to publicly comment on the situation the country now faces. And while Roberts has zero actual say in the outcome (which is solely the province of the president and Senate, constitutionally), his opinion would certainly carry a whole lot of weight in the debate that happens before the confirmation vote takes place.

There is one other thin reed of optimism to cling to in all of this. If Joe Biden is elected president (and the Supreme Court doesn't overturn the election) and if the Democrats do take back the Senate, then Chuck Schumer has already stated that "nothing will be off the table" if Trump's nominee is jammed through before January. He has not specified exactly what this means, but there are a few prominent options worth considering.

The biggest option is the most obvious one -- Schumer could drop the final remaining nuke and overturn the Senate filibuster rule for legislation. If Democrats kill the filibuster once and for all, this would change Washington overnight. The minority party in the Senate would have no more power than the minority party currently has in the House of Representatives (which is to say: "none"). Whichever party held both houses of Congress and the White House could pretty much do whatever they pleased without having to consider the minority party's wishes in the slightest. This would break the logjam that the Senate has now become in the biggest way imaginable. Things would actually get done in Congress once again -- which would be an enormous change from the absolute gridlock which has been strangling Capitol Hill for at least the past decade or so.

It would serve to open up many other possibilities on that table Schumer spoke of, as well. One that hasn't gotten much attention yet is that Schumer could decide that the time has now come to allow Washington, D.C. to become a state. This would add two reliably Democratic senators to join the chamber. He could do the same for Puerto Rico, although this addition wouldn't be as much of a Democratic lock as adding D.C. would be (Republicans aren't as much of an endangered species on the island as they are in the District of Columbia). We could have 52 states and 104 senators by this time next year, which would obviously change the political calculations considerably. If all four new senators were Democrats, this would increase Schumer's majority in a significant way. Let's say Schumer wins a majority of 52 seats in November. This means he will functionally have a two-seat advantage -- he can lose two votes from his party and still pass legislation (with a Democratic vice-president breaking the tie). If he added four Democrats to the chamber, it would mean a majority of 56 to Republicans' 48. In this scenario, 52 votes would mean a tie, so Schumer would have a bigger margin of four votes that he could lose, instead of two. That's a big difference.

Of course, we'd have to redesign the U.S. flag, but that's a minor consideration. Adding four senators with such a heavy Democratic tilt would also make it that much harder for the Republicans to win control of the chamber back, and this would be a permanent change -- no future Republican Senate could kick D.C. and Puerto Rico out of the Union.

The biggest option Schumer would have (assuming the death of the filibuster) would be to "pack the court." Would Democrats play this kind of hardball? That's an open question -- it didn't work for F.D.R., after all, even with a Democratic Senate. And Democrats are not generally known for their prowess at the game of hardball. Would a majority of Senate Democrats go along with such a radical scheme now? There's no guarantee that they would. And Joe Biden has previously said he's against the idea. However, R.B.G.'s death has shaken the party to its core -- so the base voters may indeed demand some hardball action. If there was a groundswell of public opinion in favor of radical moves, it might prove to be very hard for Democratic officeholders to resist.

But if Schumer is smart, he may decide to only slightly pack the court. Take it by the numbers -- if the court in January is 5-1-3, then achieving liberal dominance would require adding at least four more justices (which would leave it at 5-1-7). That's a lot, however. It would leave the court with 13 justices, which many would consider to be unlucky. And it would be seen as the most naked of power grabs possible.

So perhaps only adding three might be enough. This would give us a 5-1-6 court, where ties would be possible. Just as there is no constitutional requirement for there to be nine justices, there is also no constitutional requirement that the court have an odd number of them (indeed, the court has had even numbers before, albeit not in a very long time). This would leave Roberts as the swing vote, but it would also lead to a whole lot of ties, assumably.

The smartest path forward for Democrats (if Trump's pick is confirmed, Biden wins the election, and Chuck Schumer holds the Senate) would be to act radically but with restraint (if that isn't too much of an oxymoron). Adding just two more justices would not achieve liberal dominance, but it would be a lot easier to make the case of fairness to the public for such a move. Adding only two more members would essentially preserve the ideological status quo ante, after all -- the court would be perfectly balanced as a 5-1-5 court. Just as it was before (when it was 4-1-4), Roberts would be the swing vote in all contentious cases. The conservatives would still hold an edge in power, since Roberts is a pretty conservative justice in most cases. Schumer and the Democrats could then make the case to the public that "this is not a power grab, because we will leave the court with a conservative advantage, just as it was before." They could also very easily make the case that two judicial appointments were essentially stolen from the liberals, and that adding two more for Biden to pick was nothing short of rectifying this cheating.

Currently, Republicans have been reduced to making a realpolitik argument: "We can do this, nothing in the Constitution says we can't, so therefore we are going to do it, no matter how unfair it may be." Democrats could throw this argument right back in their faces: "Nothing in the Constitution says we can't add justices, therefore that's exactly what we are going to do, period. Deal with it."

Politically, this would be the wildest of wild rides, of course. But we've already boarded that rollercoaster, folks. The only question that remains is whether the rollercoaster will take some sharp turns to the left to counter all the veering off to the right, really.

Which brings us right back to where we began. Ruth Bader Ginsburg may be resting in peace, but the rest of us are going to be in for a political battle unlike any seen in most of our lifetimes. This much is already guaranteed, no matter what the outcome turns out to be. So buckle up and hold tight, because this rollercoaster is now leaving the station.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


2 Comments on “From The Archives -- R.I.P., R.G.B.”

  1. [1] 
    MtnCaddy wrote:

    I'd say this piece aged fairly well if one considered all that has happened since you wrote it.

  2. [2] 
    Elizabeth Miller wrote:

    Chris's pieces are like fine wines ...

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