Trump’s Supreme Court just showed why court packing is necessary to save US democracy

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As a couple of Supreme Court decisions from the Republican majority presented this week, they are not free to do exactly what they were assigned to do: Impose their right ideology on an unwanted public.

The latest, unsigned is part of the court’s “shadow docket,” which, as Salon’s Igor Derysh explained, is “where magistrates handed out more unsigned brief opinions without going through the usual hearings, conversations, and transparency. ” Usually reserved for non-controversial or emergency petitions, Derysh reported that “the shadow docket has grown significantly under the increasingly conservative Supreme Court, troubling legal experts.”

For a brief, shining moment early in Joe Biden’s presidency, there was a quick conversation about the exciting possibility of resizing the Supreme Court’s response to Donald Trump, despite the loss of the popular vote, which still appoint three justices to a seat illegally held opened by then Senate Chief of Staff Mitch McConnell. But that conversation was quickly destroyed by the Democratic dream killers Sens. Joe Manchin of West Virginia and Kyrsten Cinema of Arizona, who both love the filibuster more than human rights.

However, University of Wyoming law professor Stephen Feldman thinks now is the perfect time to revive the discussion, arguing that court packing is an essential necessity to save our democracy.

In his new book “Pack the Court !: A Defense of Supreme Court Expansion,” Feldman says that court expansion is not only politically wise, it also fits the long history of viewing courts as not separate from politics, but working within a political system. Feldman spoke to Amanda Marcotte of Salon about her new book and why it’s not yet time to give up on the dream of a better Supreme Court.

This lecture has been edited for length and clarity.

People are questioning the Supreme Court as to whether its size and makeup were practically ordained by God or at least by the founding fathers. You argued that it was not so, and historically there has been a lot of flexibility in the size of the Supreme Court. Can you tell me about it?

Basically, the Constitution itself says nothing about the size of the Supreme Court. The part of the Constitution that talks about federal judiciaryis very sparse, with almost no detail there. It is usually left to Congress to determine the size of the court and to some degree, its jurisdiction. And the truth is that Congress, specifically for the first hundred years or so, has been manipulating the size of the court. The first Judge’s Act established a court, at that point with six judges. But Congress started it, in just a few years, like around 1800. And at that time, Congress tried to shrink the court of a justice. And then there was an election, where the power changed and they changed the size of the court again. And it continued until the 1860s. It has been a very volatile decade in terms of, of trying to manipulate the number of magistrates in court. So it changed several times to 10 and then back to nine and then it stuck to nine. So, for the most part since then.

I would say that when Republicans refuse to consider President Obama’s nominee, Merrick Garland for the court, that’s de facto changing the size of the court. Didn’t they pass a law, but they, in fact, changed the size of the court by almost a year.

Why do you think now is a good time to start talking again about court packing? When should Democrats, who control the White House and Congress, think of doing such a thing?

There are three elements to contention. Number one is history: The court should not be set to nine justices, and the fact that it has been for many years does not mean it is necessary.

Second, if you really look at court decision -making, what is clearly the real process of deciding cases is politically dictated. The notion that we need to keep politics in the Supreme Court will not remain. Not just in regards to the size of the court but also in regards to the nomination and confirmation process, which is obviously political, right? Who the President chooses to send to court and if Congress confirms that individual, the actual decision -making process by magistrates is a combination of law and politics.

I call it law-politics volatile.

Law and politics interact in the decision-making process. If you have two magistrates from different sides of the political spectrum, they read the First Amendment penalty on free speech. They probably read it differently, right? And voting is different to decide on a particular first amendment case. But this is not because either justice lies or is dissatisfied. They look at the text and they read it from their particular political perspectives. You can’t get away from the fact that their political and their cultural backgrounds, their religious backgrounds can influence how they interpret the text. This is inherent in the process of interpretation. So politics is always part of it.

The third part of the dispute is simply looking at Roberts court politics. Roberts’ court was highly conservative and even before Justice Ginsburg died and Republicans rushed to Justice Barrett’s confirmation. They continue to deliver very conservative decisions, one after another. And really the only way to counter that is court packing.

Let’s say Democrats have somehow passed some sort of protection of voting rights, a new law that protects voting rights. The odds are very high that this court will find some way to overturn the voting rights law.

Both Brett Kavanaugh and Amy Coney Barrett showed themselves, when they confirmed, as impartial judges, only calling balls and strikes. They do not claim political ideologies.

Every Supreme Court nominee has to say something along those lines, right?

“We’ll just call it balls and strike. Just by following the law, my politics will never matter.”

They will say that and in some ways it is true. What I’m saying about how politics influences the decision -making of the Supreme Court, doesn’t mean it’s purely political. I think in most cases, not every case, in most cases, magistrates sincerely try to interpret the relevant legal text and constitutional text or a statutory text, whatever, in the best way possible. They tried to give it the best interpretation. But again, that way each individual uses justice in the text or what they think is the best interpretation, is equipped with their political-cultural backgrounds.

Legal interpretation is not like arithmetic. It’s not that two plus two equals four, is it? It’s not like that. One’s politics will always play out. Magistrates may have good faith saying, yes, I will sincerely interpret the constitutional text. They are very good at being honest about that and they can continue to do so when they are in court, but nonetheless, their politics influences how they read or interpret texts.

Democrats don’t seem to be in a hurry to change the size of the court, but if they do, what will it look like? What do you think would be the best way to do that?

All they have to do is pass a law, which means of course, that both chambers of Congress have to approve a bill and then the President has to sign it and the size of the court can be changed. And then the President can propose new justices, depending on how many seats and it goes to the Senate for confirmation.

The President appointed this commission. I don’t know what they can recommend. The odds that they recommend straightforward court packing, I think are not very high, but possible. There are all sorts of proposals proposed in the last two years for the kind of more stylish types of court expansion. There are various plans to put term limits on magistrates or expand the court.

I don’t think anything can happen right now unless the filibuster is removed. What needs to happen is the filibuster has to go. Then there has to be court-packing and then there has to be protection for voting rights.

If you don’t have filibusters you probably don’t have any kind of court packing. Isn’t it And unless the makeup of the court is changed by packing the court, the protections of voting rights are likely to break as unconstitutional and really any progressive agenda that can slip through Congress will be disrupted in before the Supreme Court.

Critics have called for court-packingsay that the problem is that Republicans will retaliate and add more justices to themselves, the next time they have power. What is your answer there?

So, I think the politics of the situation is you can’t have court-packing, unless you have control.

Democrats have control over the House, the Senate and the White House. If there is protection of voting rights that the Supreme Court will not kill, then I don’t think Republicans, who are currently forming, can sweep the House, the Senate and the White House. Republicans are using outsizedpower now, because of gerrymandering, because of electoral power. But in 7 of the last 8 presidential elections, the Democrat has won the popular vote. The Republican party will not have the reputation to sweep and enforce court packing. When the Republican party could really sweep, it wouldn’t be the same as the Republican party we have today.

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