Amy Coney Barrett’s confirmation as the ninth justice on the U.S. Supreme Court is a travesty of democracy.
The vote on Barrett’s confirmation occurred just eight days before Election Day. By contrast, the Senate didn’t even hold a hearing on Barack Obama’s nominee, Merrick Garland, who Obama nominated almost a year before the end of his term. Majority leader Mitch McConnell argued at the time that any vote should wait “until we have a new president.”
Barrett was nominated by a president who lost the popular vote by nearly 3 million ballots, and who was impeached by the House of Representatives. With Barrett now on the court, five of the nine justices have been appointed by presidents who lost the popular vote.
The Republican senators who voted for her represent 15 million fewer Americans than their Democratic colleagues.
Barrett now joins 5 other reactionary justices who together will be able to declare laws unconstitutional, for perhaps a generation.
Barrett’s confirmation was the culmination of years in which a shrinking and increasingly conservative, rural, and white segment of the U.S. population has been imposing its will on the rest of America. They’ve been bankrolled by big business, seeking lower taxes and fewer regulations.
In the event Joe Biden becomes president on January 20 and both houses of Congress come under control of the Democrats, they can reverse this trend. It may be the last chance—both for the Democrats and, more importantly, for American democracy.
How?
For starters, increase the size of the Supreme Court. The Constitution says nothing about the number of justices. The court changed size seven times in its first 80 years, from as few as five justices under John Adams to ten under Abraham Lincoln.
Biden says if elected he’ll create a bipartisan commission to study a possible court overhaul “because it’s getting out of whack.” That’s fine, but he’ll need to move quickly. The window of opportunity could close by the 2022 midterm elections.
Second, abolish the Senate filibuster. Under current rules, 60 votes are needed to enact legislation in that chamber. This means that if Democrats win a bare majority there, Republicans could block any new legislation Biden hopes to pass.
The filibuster could be ended with a rule change requiring a mere 51 votes. There’s growing support among Democrats for doing this if they gain that many seats. During the campaign, Biden acknowledged that the filibuster has become a negative force in government.
The filibuster is not in the Constitution, either.
The most ambitious structural reform would be to rebalance the Senate itself, as well as the Electoral College. For decades, rural states have been emptying as the U.S. population has shifted to vast megalopolises. The result is a growing disparity in representation.
For example, both California, with a population of 40 million, and Wyoming, whose population is 579,000, get two senators. If population trends continue, by 2040 some 40 percent of Americans will live in just five states, and half of America will be represented by 18 Senators, the other half by 82.
This distortion also skews the Electoral College, because each state’s number of electors equals its total of senators and representatives. Hence, the recent presidents who have lost the popular vote.
This growing imbalance can be remedied by creating more states representing a larger majority of Americans. At the least, statehood should be granted to Washington, D.C.
The Constitution is also silent on the number of states.
Those who recoil from structural reforms such as the three I’ve outlined warn that Republicans will retaliate when they return to power.
That’s rubbish. Republicans have already altered the ground rules. In 2016, they failed to win a majority of votes cast for the House, Senate, or the presidency, yet secured control over all three.
Amy Coney Barrett’s ascent is the latest illustration of how grotesque the Republican power grab has become, and how it continues to entrench itself ever more deeply. If not reversed soon, it will be impossible to remedy.
What’s at stake is not partisan politics. It’s representative government. If Democrats get the opportunity, they must redress this growing imbalance—for the sake of democracy.
This post originally appeared at RobertReich.org.
Robert B. Reich is the chancellor’s professor of public policy at the University of California, Berkeley and former secretary of labor under the Clinton administration. Time Magazine named him one of the 10 most effective Cabinet secretaries of the 20th century. He is also a founding editor of The American Prospect magazine and chairman of Common Cause. His film, Inequality for All, was released in 2013. Follow him on Twitter: @RBReich.
