Commentary: The case for expanding the Supreme Court

July 23, 2021 6:10 am
Exterior detail shot of the U.S. Supreme Court building

Americans can be sure that President Joe Biden’s Supreme Court nominee will be qualified. (Win McNamee | Getty Images)

If you want to protect voting rights in this country, there is now a solid case for why you should support adding seats to the U.S. Supreme Court. And it’s clear why there is little chance of protecting voting rights in the long run without court reform. 

In the final week of its most recent term, the conservative 6-3 majority on the U.S. Supreme Court issued a decision that left the Voting Rights Act (VRA) a shell of its former self. The VRA now exists more as a historical reference than as part of our legal jurisprudence. Recall that this was one of the most successful pieces of legislation ever enacted in terms of increasing access to the polls for eligible voters and combating voter suppression. 

And yet, in Brnovich v. DNC, Chief Justice John Roberts completed what he set out to do in Shelby County v. Holder back in 2013, wherein the court effectively gutted Section 5 of the VRA. 

Section 5 required that states with a history of racial discrimination submit proposed changes to their voting or election laws to the U.S. Department of Justice for “pre-clearance,” a determination by DOJ that the law would not result in racial discrimination. In Shelby County, the court invalided Section 4, which determined which states were subject to the pre-clearance requirement, effectively nullifying Section 5. 

Brnovich and Shelby County have to be viewed together, as Roberts’s personal vendetta against the VRA. While Roberts did not write the decision in Brnovich, the outcome was nonetheless predictable with Roberts at the helm of the court and empowered with a 6-3 conservative majority acquired through the right’s theft of Justices Antonin Scalia’s and Ruth Bader Ginsburg’s seats. 

In Brnovich, the Supreme Court significantly weakened Section 2 of the VRA and upheld two voter suppression laws in Arizona – laws that the Ninth Circuit Court of Appeals had rejected because they disproportionately disenfranchised Native American, Latino, and Black voters. 

Section 2 of the VRA imposed a specific restriction against any “qualification or prerequisite to voting or standard, practice, or procedure . . . in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” Post Brnovich, proving a violation of Section 2 will be significantly more difficult. 

With Sections 2, 4, and 5 of the VRA neutered, it is difficult to envision how the VRA can effectively combat voter suppression moving forward. This Supreme Court’s disregard for the renowned VRA is likely foretelling. In upholding Arizona’s law, the court indicated that it is apt to uphold the slew of voter suppression laws being enacted in various states across the country. 

Roberts’s personal indifference to voting rights was evident after Shelby County. However, it is the right’s gaming of the court since 2013 that has now trampled any hope of this Supreme Court striking down voter suppression measures going forward. 

In order to secure the majority decision in Shelby County, Chief Justice Roberts had to convince Justice Anthony Kennedy to join with the four conservative justices on the court at the time. Kennedy was the bellwether justice, often casting the deciding vote in 5-4 decisions, when the court was made of four liberal justices, four conservative justices, and Kennedy. 

Since Shelby County was decided in 2013, there have been three seat changes on the court – two of which were procured by blatant gamesmanship with no regard for democratic norms. President Barack Obama should have filled Scalia’s seat in 2016, as the country was still eight months out from an election when Scalia passed away and not a single vote had been cast in that year’s presidential election. 

And yet, Sen. Mitch McConnell refused to allow so much as a hearing for Obama’s nominee, Judge Merrick Garland, let alone a confirmation vote. Scalia’s seat would not be filled until 15 months after Scalia’s death, at which time it was filled by Neil Gorsuch, nominated by President Donald Trump.

Last fall, Ginsburg died just 46 days before Election Day. McConnell helped Trump jam Amy Coney Barrett’s confirmation through the Senate while voters were casting their ballots to remove Trump from the White House and elect President Joe Biden. We were in the middle of an election when the right packed the court to achieve its 6-3 majority, wherein Roberts suddenly looks like a moderate.

Moreover, this week brought new revelations about the deliberate mishandling of the FBI’s investigation into Justice Brett Kavanaugh during his confirmation process. While there is more to be learned here, the news seems to further underscore the gamesmanship utilized by the previous administration to pack the court and achieve the current 6-3 conservative majority. 

If Roberts, who wrote the decision in Shelby County, is now the most moderate of the six conservatives, it is almost a guarantee that this court will remain hostile to voting rights so long as the right retains its pilfered majority. 

While we cannot be certain how Brnovich would have come out had the right not usurped Scalia’s and Ginsburg’s seats, we can be everything but certain that the case would have come out differently. To be clear, it is not the political evolution of the court that beckons court reform. Like Congress, the political make-up of the Supreme Court is ever evolving. 

Rather, it is the naked theft of two seats on the court that cannot go unanswered. And now, we must also factor in the questions about the dubious nature of Kavanaugh’s confirmation process. The right has a 6-3 majority, and was therefore able to decide Brnovich as it did because it packed the court before our very eyes. To do nothing about it is to acquiesce to the stealing of our highest court and to lay out the red carpet for similar gamesmanship down the road. 

Democrats are expressing renewed commitment to enacting federal voting rights legislation, as well as to fighting voter suppression laws at the state level. Both efforts are desperately needed to restore our democratic legitimacy. At the same time, voting rights advocates must account for the likelihood that such legislation will end up in court – and eventually before a packed court. With its gamed majority, the right can feel confident that the current Supreme Court will be skeptical of any legislation seeking to reinvent the Voting Rights Act. 

For those who believe that we must protect voting, meaning protecting access to the polls for all eligible voters and combating voter suppression, it is no longer enough to only support new legislation. The strategy must include supporting court reform, including consideration of new seats on the Supreme Court to redress the right’s theft. Otherwise, Shelby County and Brnovich are likely to be just the first in a series of crushing defeats for voting rights at the pen of our highest and stolen court. 

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