The Supreme Court Post-Kavanaugh: A Grand Strategy for the Left

by Benjamin Studebaker

Now that it’s become clear that we’ve failed to stop Brett Kavanaugh, a fascinating debate is brewing about what the American left’s position ought to be with respect to the Supreme Court going forward. There are two big, radical proposals vying for people’s attention and support:

  1. Gather the senate supermajority necessary to impeach and convict Kavanaugh over the next several election cycles, then replace him with a Democratic Party nominee in 2021, 2023, or 2025.
  2. Gather a simple majority in the senate and a Democratic president and revive Franklin Roosevelt’s court-packing plan, increasing the number of Supreme Court justices until the court is forcibly shifted to the left.

I want to discuss the merits and demerits of both approaches and propose a long-term strategy that I think will be more effective than immediately picking up and running with either.

Image result for court packing fdr

First, the basic differences between the two plans:

  1. On a technical level, it requires fewer senators to pack the court than it does to remove Kavanaugh.
  2. But in terms of legitimation, it is easier to persuade people that there is one bad judge on the court than it is to persuade people that the entire court is garbage and needs to be packed.

We also know from the polling that there are a lot of Americans who not only believe that Kavanaugh should not be impeached, but that the senate is right to confirm him. Republicans made major gains in the midterm polls and prediction models during the Kavanaugh hearings.

Right this minute, we probably can’t persuade a majority of Americans either that Kavanaugh should be impeached or that the court should be packed. But did you notice how Senator Susan Collins (R-ME) justified her decision to support Kavanaugh? She alleged that even though the Republican Party has been promising to reverse Roe v. Wade for years by appointing anti-Roe judges, Kavanaugh is no such judge. Here’s what the Republican Party platform says:

We understand that only by electing a Republican president in 2016 will America have the opportunity for up to five new constitutionally-minded Supreme Court justices appointed to fill vacancies on the Court. Only such appointments will enable courts to begin to reverse the long line of activist decisions — including RoeObergefell, and the Obamacare cases — that have usurped Congress’s and states’ lawmaking authority, undermined constitutional protections, expanded the power of the judiciary at the expense of the people and their elected representatives, and stripped the people of their power to govern themselves.

And here’s what Collins said:

There has also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade. Protecting this right is important to me…I asked the judge point-blank whether he had made any commitments or pledges to anyone at the White House, to the Federalist Society, to any outside group on how he would decide cases. He unequivocally assured me that he had not.

In effect, Collins is saying that the Republican platform lies about what Republican-appointed justices will do. She is supporting Kavanaugh because she believes (or claims to believe) that he will not make the provocative, nakedly partisan 5-4 decisions many on the left expect Kavanaugh to make. There are some Americans who support Kavanaugh because they are ideologically right wing. But there are also many Americans who support Kavanaugh because they believe that Kavanaugh is going to behave himself on the bench. They will not support his removal–and they will certainly not support court-packing–unless and until Kavanaugh demonstrates deeply partisan behaviour from the bench.

This, then, is what we have to wait for. Kavanaugh has to make a horrible, nakedly reactionary decision from the bench. When that happens, Kavanaugh will delegitimate both himself and the court to a degree unprecedented in recent political memory. If, when this happens, a Democratic senate supermajority exists, it might be possible to attempt to remove Kavanaugh. If a Democratic majority exists alongside a Democratic president, it may be possible to pack the court.

But not before then. Before then, our talk of impeaching Kavanaugh or packing the court will keep Republican base voters in red states angry and prone to turn up at the polls. The senate contests we are striving to win in 2018 are largely in red states, where a large, riled Republican base can easily overcome a smaller Democratic base, even if that base is very energetic. In an arms race of angry bases, we will lose.

So it’s not necessary to decide today, in 2018, whether we ought to try to impeach Kavanaugh or pack the court in 2021 or 2025. Whether we are able to do these things will depend on whether we have the senate, how big the senate majority is, and whether we have the presidency when Kavanaugh overreaches. It is not especially likely that both options will even be on the table–a Democratic president with a supermajority has in recent decades been a rare and fleeting combination, and the Democratic leadership has struggled to make the most effective use of such scenarios. FDR had 75 Democratic senators when he tried and failed to pack the court. He made the case for it in a fireside chat, but no one was biting, even in his own party:

We may not even get the kind of decision from Kavanaugh which could trigger this response–Chief Justice John Roberts works very hard to maintain the legitimacy of the Supreme Court, as illustrated by his vote to uphold Obamacare in 2012. We can expect Roberts to be careful in the coming years to prevent the court from taking the kinds of cases which could result in the kinds of decisions that would produce the political space for impeachment or court-packing. If the court overreaches, it will require both Kavanaugh and Roberts to participate. The conservative faction still doesn’t have five justices without Roberts.

For now, the move is to be patient with respect to the court and return to our bread and butter mass issues–healthcare, inequality, and wages. Let Kavanaugh and Roberts reopen this at their peril.