Expert: Dems need to expand Supreme Court to counter the conservative assault on democracy
Klarman received his J.D. from Stanford and his D. Phil. from Oxford, where he was a Marshall Scholar. He clerked for the late Justice Ruth Bader Ginsburg on the U.S. Court of Appeals for the D.C. Circuit. Klarman is a board member of the Take Back The Court Action Foundation advisory board.
Here's his interview with Raw Story:
Q. You were calling publicly for an expansion of the U.S. Supreme Court as far back as 2018, well before most others. What prompted you to come to that conclusion?
A. The precipitating event was Mitch McConnell’s theft of the Scalia seat in 2016. I think the strongest argument for court expansion is a combination of McConnell essentially depriving Democrats of the first chance they had in 50 years to have a majority of the court along with the structural changes that have given disproportional power to Republicans in recent decades. Democrats have now won the popular vote for the presidency in seven of the last eight elections. The 50 Democratic Senators represent 40 million more voters than the 50 Republican Senators. But the Republicans have retained power over the court. My argument is not just that they stole a seat. It’s that if you win with margins like this for the presidency and the senate, you ought to control the third branch of government.
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Q. And why this solution?
A. It's almost impossible to do anything about the electoral college or the Senate because you need a constitutional amendment, which is impossible to secure when there's a partisan split. But you can do court expansion by statute. Democrats may not be able to do anything about the fact they’re not going to be able to control the presidency or the Senate as much as they should – the same is actually true about the House, but not as dramatically. But they certainly don’t have to sit around and let that be true of the Supreme Court as well.
Q. Yet the Democrats have shown no appetite for doing that in the past nearly two years when they’ve had technical control of both houses of Congress, have they?
A. I wouldn’t say they have no appetite. It isn’t universally supported, and the President hasn’t been advocating for it. But I wouldn’t be surprised if half of the House Democrats would vote for it today – it might be more than half. There’s a bill that was proposed and it has a lot of sponsors in the House, and at least Senator Markey and maybe more in the Senate. So, I wouldn’t call it no appetite. It’s not going to happen until Democrats unite behind it, but the Supreme Court is actually the strongest advocate for it with their radicalism. The last term was pretty extraordinary.
Q. Obviously, there was Dobbs that jumps out. But what other cases come to mind that went beyond the natural shift one gets with a more conservative court?
A. So am I limited to the last term, or can I talk about the last couple of decades?
Q. There are no limits here.
A. So the Supreme Court guts the Voting Rights Act between the Shelby County case and the case from the Arizona term before last. The Supreme Court refuses to do anything about gerrymandering. The Supreme Court unleashes money, including corporate money in politics. The Supreme Court undermines public-sector labor unions. The Supreme Court's about to strike down affirmative action next term. The Supreme Court strikes down gun control. The Supreme Court dramatically expands free exercise rights. The Supreme Court's going to embrace this absurd independent state legislature doctrine. The Supreme Court overturns a 50-year-old precedent on abortion. The court is a threat to democracy and the conservative justices seem completely unrestrained. I could go on and on.
Q. Got it. But what’s your response to those who would say that such a step by Congress would amount to destroying the separation of powers?
A. The size of the court was changed a half dozen times in the 19th century. For somebody to argue against this on constitutional grounds --especially somebody who's committed to originalism and strict construction -- is just flagrant hypocrisy. The size of the court was changed from six to five to seven to nine to 10 back to nine. It was often done for openly partisan reasons. It hasn't been done since 1869. But there's just no argument, no textual argument or even an original understanding that you can't change the size of the court.
Q. What do you say to those on the Democratic side who argue that if the Democrats expand the court, that somehow the Republicans will respond in kind when they take power back?
A. I do not understand the argument against doing it. I really want to emphasize at this point. There are lots of issues that I’m not super confident about, right? I don't know how much you should stimulate the economy when we're troubled by inflation, or what to do about the rise of China. But what’s the argument against court expansion when Republicans have already done it? Democrats are responding to what the Republicans have already done. We know the Republicans would do it the first time they need to control the court, because already done it
in several states. They've expanded the courts in Arizona, and Georgia. Rick Scott had said he would do it in Florida in his last act as governor if Democrats had won the gubernatorial race, saying “I’ll pack the courts before I leave.” They've tried to do it in North Carolina. McConnell obviously would do it. So, I don't see what the cost is. Expanding the court would still be perceived as less radical than indicting Trump, and it's obvious Trump should be indicted, since any other living human being would be indicted for what he's done.
Q. So is it fair to infer that you have given up on appealing to Mitch’s better angels?
A. McConnell has done more to undermine American democracy than Donald Trump, which is a pretty strong statement. In fact, McConnell may have done more than any American since the Civil War to contribute to democratic collapse.
He certainly has been doing it longer and better than Trump. McConnell does it in much more strategic and insidious ways because it takes place under the radar screen of most Americans. When he makes the Federal Government dysfunctional, that's not like January 6 where people see violence. That was the lesson of the Civil Rights movement, right? You have quiet segregation, and northerners don't care. But you blow up teenage black kids, in a church and suddenly, or you beat up John Lewis on the Edmund Pettus Bridge, and suddenly people care. But when McConnell made it impossible for President Obama to appoint agency heads or to get judges confirmed – or when he unleashed money in politics -- it was hard to mobilize the movement against those things. Obama tried. but you know money and politics is not generating images like George Floyd being murdered on national television.
Q. Still, there are a lot of Democrats, independents and moderate Republicans who seem to think that when Trump leaves the scene things will go back to some version of normal. Is it fair to say you don’t agree?
A. They're just wrong. I understand why they think so. Liz Cheney talks that way, and as much as I admire her, it’s a huge mistake. Most of the political scientists who study the degradation of democracy will tell you that the Republican Party has become a radical quasi-fascist authoritarian party over the last 20 years, and the problem is not Trump. I mean Trump may exacerbate it, but he's a symptom, at least as much as he's a cause. The problem is the voters, however many percent of people who are Christian white nationalists who think the country is losing its Christian identity and its white majority. They see their world as being existentially threatened. Trump has come along and said, “follow me,” but those people had to be ripe for it. There's no way. Donald Trump could have been successful 15 or 20 years ago. The Republican Party has been engaging in extreme voter suppression measures and attacking labor unions for the past 20 past years and it’s a recognition that by 2024, white Christians will not be a majority of the electorate.
Q. Are the partisan Republicans who sit on the Supreme Court today are the sort of individuals you just described? Or are they more mainstream partisans who are merely enabled by the extremists?
A. That’s a great question. This may be less true of Thomas and Alito, but it’s certainly true of Kavanaugh, Gorsuch, Roberts and maybe Barrett. Probably none of them is thrilled with Trump; they might despise him. But they’re not willing to oppose this extreme libertarian ideology – the McConnell-Paul Ryan ideology – of tax cuts for the rich, deregulation, denial of climate change and evisceration of the social safety net. What they most want is to dismantle the modern administrative state. They’re totally on board with gerrymandering, gutting the Voting Rights Act, unleashing corporate money in politics and undermining public-sector labor unions. But they don’t want January 6 and violence. I don’t think they’re committed to a fascist social agenda although that’s not entirely clear sometimes with Alito. But they’re not Ron DeSantis.
Q. But you do see them as continuing to attack the foundations of democracy, so is it fair to say that court expansion is the only way to stop them?
A. It's possible that the court would be intimidated if Democrats could win by a large enough margin in 2022. It would be really extraordinary if the Democrats held on to the House given that it’s only happened twice in the last 100 years and considering the president’s approval ratings are in the low 40s and inflation is its highest in 40 years. But these justices don't seem very chastened by their performance last term. So, there’s reason to think they’ll change. It may seem radical to expand the court, but Republicans brought this on themselves, and their court is really making the case for it to happen. It would be suicidal for Democrats to sit around and allow the court to strike down everything they care about unchecked. There’s no reason for Democrats not to expand it.
