Dems need to fight dirty to take back the Supreme Court

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In light of President Trump’s troll-in-chief act, the recent spate of bombing attempts targeting prominent Democrats and an escalating evisceration of American political norms, many people understandably crave a return to civility and politics-as-normal.

But a steadily growing chorus of voices warns that the reestablishment of abandoned political norms is both a pipe dream and a dangerous trap for liberals.

In his book “It’s Time to Fight Dirty,” political scientist David Faris argues that Democrats should learn from Republicans and game the political system to establish lasting control over the government. Through thoughtful analysis and a series of ruthless policy recommendations, Faris powerfully argues that Democrats must “stop bringing pistols to nuclear wars.”

Of Faris’ proposals, one in particular has gained serious traction among progressive Democrats and leftists: packing the Supreme Court by adding more seats to be filled by liberals. The Constitution does not define how many justices make up the Supreme Court – that’s a power held by Congress, and the number has changed several times throughout history.

Faris notes that “in the past 50 years, including [Kavanaugh], Republicans have made 15 of the 19 Supreme Court appointments … despite controlling the presidency only 62 percent of the time.”

The Supreme Court has never been an apolitical arbiter of constitutionality. It is a deeply undemocratic institution of unelected lifetime appointments that mirrors its analogs in faux-democracies like Iran and China.

It’s not really a court. It’s our most powerful de facto legislative body that decides our rights and arbitrates our laws based on the politics of whatever party holds most of its seats. Constitutionality is moot when originalists and living-document advocates disagree on the Constitution’s very nature and just as often use those labels as cover for their own politics.

Rather than a group of neutral legal minds, the Supreme Court is controlled by a rightwing activist majority that seeks to drastically change the fabric of our society against the wishes of most voters. The best option for Democrats is to abandon the fairy tale of judicial impartiality and kick the Supreme Court’s inherently political nature into overdrive.

Skeptical? Consider that the partisan essence of the Supreme Court has been taken to a ridiculous extreme in recent decades. Four current Supreme Court justices have been appointed by Republican presidents who lost the popular vote. One of those presidents used political allies on the court to steal the 2000 election. The Senate majority that appointed Brett Kavanaugh represents fewer Americans than the Senate minority does.

Democrats should plan to pack the Supreme Court with at least two liberal justices as soon as they control Congress and the presidency and should establish that control by running on a promise to do so.

Faris argues that when Democrats hold power again, they should first offer a compromise: Neil Gorsuch, the illegitimate
justice who owes his seat to Republicans’ abandonment of democratic norms, would resign, and both parties would pass a constitutional amendment limiting Supreme Court terms to 18 years.

This would make the court more subject to the whims of the people through their election of senators and presidents and would eliminate the need for a court-packing scheme. If Republicans refuse, Democrats should pack the court and feel justified in doing so.

Would this be the same kind of normdestruction that’s led us to this strange and interesting political moment? We should be past caring. A norm is not worth preserving when it’s led to such blatant usurpations of our democratic rights.

Conservatives call this argument a case of sour grapes, but with an unelected body appointed by representatives of an extremist minority set to overturn marriage equality and reproductive freedom, both favored by Americans at a 2-to-1 margin, Americans are right to consider altering the Supreme Court into a more democratic body that better reflects the majority’s conception of rights and liberty.