Now that Amy Coney Barrett has been confirmed to the Supreme Court, there is fervent discussion about how liberals and progressives should respond. It’s obvious that the Republican Party abides by no consistent rules, and is only interested in increasing its own power. What is less obvious is what to do in response to their blatant bullshit.
I have seen three responses from my circles.
1: “Pack the court, destroy the GOP, destroy the norms.”
A rash, autocratic, authoritarian sentiment has overtaken a lot of people. I can’t entirely blame them. It’s disappointing to think that there are rules that everyone abides by, only for you to get burned by people who had no intention of following them. This reactive impulse manifests itself as doing anything and everything to essentially turn the United States into a one-party state, with that one party being the Democratic Party.
Packing the Supreme Court is the primary recommendation of this group. Expand the Supreme Court by two or four seats and have a President Joe Biden alongside a Democrat-controlled Senate fill those seats, tipping the balance of power in the Supreme Court towards Democrats. Other ideas include aggressively engaging in gerrymandering and voter suppression at every level in a way that benefits Democrats.
2. “This is an illiberal and bad idea.”
There are those who think that the former ideas are godawful. Once Democrats pack the court, what’s to stop Republicans from unpacking it or, worse, escalating the matter as soon as they regain power? The only way to prevent Republicans from taking advantage of these newly broken norms is to completely expel them from public life, and that would be a deeply illiberal response. So hardball is out of the question.
These people have not presented much of a solution to the problem of Republican actions, representing an “old guard” ideology of norms and rules. This second type is more preoccupied with chiding the first type for being illiberal than providing an adequate response to the undemocratic, illiberal, nihilistic power-grabs of the Republican Party. I hope we all remember that only one of these groups has the presidency.
3. “This is awful. We might actually have to pack the court.”
I noticed this last response coming from the smartest and most thoughtful people I listen to. The most insightful political commentators and my favorite contemporary liberal theorists are striking a different tone than either of the former. They recognize the dire situation the Republican Party has put the United States in, and they recognize that the only way to get out of it is hardball.
This is not an illiberal hardball. While the first are satisfied to scratch liberal democracy, and the second content with letting it be steamrolled, this third group recognizes how liberalism comes into existence, how it is maintained, and how it fades. Liberalism cannot tolerate illiberalism. To paraphrase John Rawls, if we wish to uphold justice, illiberalism must be treated like war and disease: fought, contained, and suppressed.
So what is to be done? Pete Buttigieg’s court reform plan, while controversial, now represents a genius way to get us out of our current quagmire. Liberalism is not utopian; it brokers deals in reality. These deals are the rules of the game. Buttigieg had an idea to let Republicans pick five Supreme Court Justices, Democrats another five, and then those ten pick a last five by unanimous consent. Republicans can’t replace a Democrat justice, and vice versa. While there are many things that are less than ideal about this plan, the basic idea is that it creates a court that looks much more non-partisan than the current court, and anyone who messes with it would look blatantly partisan. Even now, Republicans try to maintain a facade of nonpartisanship (“Amy Coney Barrett is extremely qualified! She says she’ll rule based on the merits of the case!”), but that lie can’t be maintained if Republicans try to make an explicitly ideologically balanced court unbalanced.
This is also the reasoning behind Joe Biden’s emphasis on creating a bipartisan commission to examine court reform. It’s not ideal to work with Republicans, but they still exist, and they hold power. The trick is having enough people agree that a set of rules are reasonable to the point where changing them is widely regarded as a bad idea.
One thing has to be made clear here. This is not rolling over for the Republicans. At the end of the day, if this third response succeeds, the Republicans have lost. They have spent decades trying to take over the federal court system, and a comprehensive plan to “unbias” the courts would be a complete repudiation of their governance.
And the Republicans must be repudiated. This can’t be a passive response, a hope that Joe Biden wins six hundred electoral college votes and Democrats take ninety seats in the Senate so that maybe we can appoint one new justice in the next four years. The harm done to our democracy is real, and we have to play hardball. The side that wants to play by rules, the Democrats, must play aggressively until the side that doesn’t want to, the Republicans, agrees.
That’s the only good liberal response.