Yes: Pro­gres­sives, pack the courts

Lodi News-Sentinel - - OPINION -

Many Amer­i­cans imag­ine the fed­eral courts as a guardrail for our democ­racy. At times, they have been.

It was the Supreme Court that struck crit­i­cal blows against racial seg­re­ga­tion, abor­tion bans and laws tar­get­ing LGBTQ or in­ter­ra­cial re­la­tion­ships. And lower courts have of­ten been an early check on the Trump ad­min­is­tra­tion.

But th­ese days, Amer­ica’s deep­en­ing po­lar­iza­tion is run­ning head­long into an­tidemo­cratic de­fi­cien­cies hard­wired into our Con­sti­tu­tion. As the trend ac­cel­er­ates, the courts are poised to put a nail in the cof­fin of Amer­ica’s al­ready ail­ing democ­racy — un­less pro­gres­sives do some­thing about it.

Con­sider a few numbers. First, re­mem­ber that the Elec­toral Col­lege helped Don­ald Trump be­come pres­i­dent de­spite los­ing the pop­u­lar bal­lot by nearly 3 mil­lion votes. The Elec­toral Col­lege fa­vors whiter, more con­ser­va­tive states, and so does the Se­nate. Be­cause 40 mil­lion Cal­i­for­ni­ans get the same num­ber of se­na­tors as 575,000 Wy­omin­gites, 2016 also saw Repub­li­cans win the Se­nate — de­spite get­ting 11 mil­lion fewer votes than Democrats.

Next, re­mem­ber that Brett Ka­vanaugh — a Trump-nom­i­nated Supreme Court jus­tice fac­ing cred­i­ble sex­ual as­sault al­le­ga­tions, and who most Amer­i­cans op­posed — got a life­time ap­point­ment to the court when se­na­tors rep­re­sent­ing just 44% of Amer­i­cans con­firmed him.

In short, the United States now has a Supreme Court far to the right of most Amer­i­cans. It was ce­mented by a pres­i­dent who lost the pop­u­lar vote, and con­firmed by a Se­nate ma­jor­ity that lost it by even more. That’s three branches of gov­ern­ment with no pop­u­lar man­date — and it’s only go­ing to get worse.

Even be­fore Trump, the Supreme Court was chip­ping away at democ­racy.

With Cit­i­zens United, it opened the flood­gates to an un­prece­dented del­uge of cor­po­rate cash in elec­tions. With Shelby County vs. Holder, which gut­ted the Vot­ing Rights Act, it green­lit GOP-con­trolled states to shut­ter thou­sands of polling places and erect new bar­ri­ers to vot­ing.

Un­der Trump, it’s get­ting worse. The court re­cently re­fused to hear chal­lenges against ex­treme ger­ry­man­der­ing, which has helped Repub­li­cans hold onto ma­jori­ties _ and of­ten su­per­ma­jori­ties _ even in state­houses and con­gres­sional del­e­ga­tions where they lost the pop­u­lar vote.

Mean­while, it has de­fied lower courts to let the pres­i­dent ban trav­el­ers from ma­jor­ity-Mus­lim coun­tries and spend money law­mak­ers didn’t ap­pro­pri­ate on a bor­der wall most Amer­i­cans don’t want. In 73 5-4 rul­ings where GOP donor in­ter­ests have been at stake un­der this court, the donor in­ter­ests won 73 times.

In fu­ture rul­ings, watch­ers worry the Supremes could make the Dream­ers el­i­gi­ble for de­por­ta­tion, crim­i­nal­ize nearly all im­mi­grant ad­vo­cacy, and stop fed­eral agen­cies from reg­u­lat­ing vir­tu­ally any­thing re­lated to public health, the en­vi­ron­ment, or big busi­ness. Land­mark rul­ings like Roe v. Wade are also un­der threat.

Such a court seems un­likely to buck the ad­min­is­tra­tion on any­thing re­lated to the pres­i­dent’s taxes, cor­rup­tion or im­peach­ment. “What goes around comes around,” Ka­vanaugh snarled dur­ing his tense con­fir­ma­tion hear­ings.

Mean­while, the GOPruled

Se­nate is pack­ing the lower courts even more ag­gres­sively with con­ser­va­tive ide­o­logues — more than 150 so far. That’s thanks in part to GOP Se­nate leader Mitch McCon­nell’s stonewalli­ng of Obama court ap­point­ments, in­clud­ing the Supreme Court seat now held by Trump nom­i­nee Neil Gor­such.

Sev­eral of th­ese judges are rated “not qual­i­fied” by the Amer­i­can Bar As­so­ci­a­tion. But their job isn’t to weigh the law care­fully _ it’s to is­sue re­flex­ive right-wing rul­ings, like the judge in Texas who struck down the en­tire Af­ford­able Care Act af­ter GOP tax cuts ended the in­di­vid­ual man­date. Ob­servers called the rul­ing “ab­surd,” but it’s a har­bin­ger of things to come.

If pro­gres­sives win power in 2020, they should im­me­di­ately im­pose term lim­its on th­ese life­time ap­point­ments, cre­ate and fill new ju­di­cial po­si­tions, and other­wise re­verse this ex­treme ger­ry­man­der­ing of our ju­di­ciary. To help, they could also ad­mit new states (D.C.? Puerto Rico? Guam?) to re­bal­ance the Se­nate and Elec­toral Col­lege, en­fran­chis­ing mil­lions of U.S. cit­i­zens in the process.

Ex­treme? A lit­tle. But if noth­ing changes, we’re on track for a gen­er­a­tion of rule by right-wing mi­nor­ity gov­ern­ments, a steady roll­back of demo­cratic rights, and cor­po­ra­tions freed from even the reg­u­la­tions needed to sus­tain life on this planet. And with vot­ing dif­fi­cult or ir­rel­e­vant in much of the coun­try, there will be no fore­see­able con­sti­tu­tional rem­edy.

The left can’t let that hap­pen, es­pe­cially not for love of norms the right has lost all in­ter­est in ob­serv­ing. Pro­gres­sives, pack the courts!

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