If a Democrat as audacious as Mitch McConnell was president, they’d point out we increased the size of the Supreme Court to 9 justices in 1869 because there were 9 federal judicial circuits. The population was 38 million. Now that there are 13 circuits and the population is 338 million, the president would say we need 13 justices. The president would deny any other motive and Democrats would immediately add 4 Democrats to the Court. But that’s not the president we have.
Sometimes I wonder what would happen if we could travel back in time to 2019 or early 2020 and tell Joe Biden he’d be the next president, but that under the governing approach he’d laid out for primary voters—pro-filibuster, anti-court reform, conciliatory to a fault with the GOP—he’d oversee the abolition of the right to abortion, the hollowing out of the regulatory state, the imposition of an imaginary constitutional right to concealed carry, the disintegration of his policy agenda, an inability to marshal a federal response to a violent coup, and perhaps, right before his re-election campaign, the constitutionalization by five rogue Supreme Court justices of the January 6 strategy to steal elections for Republican candidates.
What if anything would he do or say differently? … If Biden had rethought his institutionalism, what different steps would he have taken to rally Democrats around a new and (by necessity) more partisan approach to governing, to insure against rapid democratic backsliding and maybe even the end of the republic?
The answer may actually be “none.” All of these things have come to pass, and Biden still at least claims faith in the institutions that are steering the country toward an authoritarian takeover.
But I suspect this is not the presidency Biden wanted or imagined for himself. I think he really did want to save the country … and preside over an American renewal. I think (because nothing else really makes sense) that he drove himself into a cul-de-sac by running on the idea that his victory would largely solve these problems automatically, that retrofitting the country’s democracy wouldn’t require using carrots and sticks and tireless persuasion to change what it means to be a Democrat. That as a calm, unimpassioned figure, his mere presence would quiet national unrest and refasten the bonds that used to hold the country together. By the time he realized he’d handed Joe Manchin and Kyrsten Sinema all the justifications they’d need to stand in the way of responding to new threats, it was too late.
Obviously this is a multi-layered counterfactual, of limited probative value. Maybe if Biden had been open to more procedurally radical ideas, he would’ve lost the election; maybe no amount of cajoling from the leader of the party—no matter how early and heartfelt and persuasive—would’ve changed what Manchin and Sinema thought they could get away with. If you’re intent on concluding that Biden played a bad hand perfectly, and we were always destined for the abyss, it isn’t hard to reason your way there.
But the problems swallowing Biden’s presidency were easily foreseeable. For one thing, I foresaw them! In October 2019, I wrote that candidates who cling, like Biden, “to the view that a golden era of compromise will dawn once T____ is gone… will lock themselves into a mode of governing that can not work anymore. Their supporters and intra-party critics will be demoralized, their presidencies will stagnate, and they will waste precious time grasping for a better approach.”
Around the same time, I pleaded with Democrats to begin leveling with their voters about the dangers of the Supreme Court, and the need to dilute its power, because, “If Dems don’t preemptively expand the courts, Republican judges, with their lifetime appointments, can simply wait until the elected branches are divided again and then implement the disastrous judicial agenda they’ve been building toward for 40 years.”
That actually proved a little optimistic, because what happened in reality is those justices waited until the Democratic Congress gave the high sign that it would under no circumstances intervene to check them, and they got to work right away….
Obviously we can’t go back to 2019 to travel roads not taken, we can only move forward from where we are. That’s why I’ve been going on for months about what Democrats should do if and when the Supreme Court overturns Roe v. Wade. Well, that happened a week ago now, but the simple idea remains the same: Level with voters about the party’s current limitations, stemming from its narrow majorities, and make a simple promise to codify Roe as a first order of business next year if voters manage to give them two more Senate seats and a House majority.
…but at the same time I know that even on the off chance that this strategy works out perfectly—that Democrats make the midterms a referendum on Roe, and win the majorities they need to codify it—we’ll still be plagued by those earlier failures.
Without movement to reform the courts, it’s easy to see how a hard fought victory could turn pyrrhic. If Dems codify Roe in January 2023, without taking any steps to insulate it from the illegitimate judiciary, I give it a few weeks before Republicans find a corrupt judge, probably a T____ judge, to enjoin it nationwide on some laughable pretext. I’d give it better-than-even odds that this same Supreme Court would make up a basis for voiding it.
That doesn’t mean the thing I keep badgering Democrats to do isn’t worth it….It’s easy to get yourself spun up about how things might go wrong, and then use the likelihood of future setbacks as an excuse to do nothing now. Even if Democrats never get that court-reform religion, codifying Roe next year would be better than retreating tactically. If a judge enjoins it, that’s a new opportunity for the same Democratic majority to consider checking and balancing the judiciary.
But Democrats aren’t going to get there so long as the Democratic president is aggressively opposed to expanding the court. The Dobbs ruling didn’t change their minds, the subsequent opinion stripping EPA of the power to regulate climate pollution didn’t change their minds. Why would a ruling that voids the Women’s Health Protection Act change their minds? Their minds will start to change when the leadership stops being scared of going to war with the courts. I gather they’re scared that if they blur the abortion issue with the cause of court reform, the public will reject it. But the thing to do then isn’t to say ‘I’m not for expanding the court,’ it’s to say the court has lost its legitimacy, and it needs to be restored one way or another.
I guess what I’m trying to get across is that it’s critically important for Biden and Dems to understand what has happened to them, why it happened, and to abandon the disastrous thinking that led them here.
Personally, I think someone with Biden’s ear should tell him he’s perhaps four months away from going down in history as the president who lost democracy without throwing even a half-hearted punch.
On Friday, this same rotten court announced that it will hear a case that was cooked up specifically to constitutionalize the GOP’s January 6 strategy for stealing elections. Needless to say, if the Alito 5 rule the way D____ T____ wants them to rule (and they very well might) that’s likely game over for the republic.
And the worst part is, that isn’t the kind of wreckage that Democrats can fix by codifying this or that. Democrats have to expand the Court before these ghoulish justices hear or decide that case, or they will corrupt the 2024 election, and we’ll likely never get another chance.
Mr. Beutler continues here.