The confirmation of Amy Coney Barrett to the Supreme Court means if Democrats take control of the White House and the Senate, then they don’t have a choice: They must pack the court.
It’s important to understand that Barrett’s ascension is not a one-off GOP success. It is the culmination and victory of the conservative legal movement. This movement, led by organizations such as the Federalist Society, seeks to embed a conservative reading of the Constitution into the law through judicial appointments, public advocacy and legal education. It would be hard to overstate the importance of the Federalist Society; all of Trump's nominees were at one point members of the organization.
What makes this right-wing movement’s victory so important is that it gives conservatives an incredibly powerful 6-3 majority on the Supreme Court. This control means that the right can afford to lose a conservative vote and still win, allowing right-wing legal challenges to be even more extreme than were possible before.
That sentence should send shivers down your spine because the decisions of the formerly 5-4 Roberts court were already devastatingly conservative. Take the conservative majority’s opinion in Shelby County v. Holder, for example. This case resulted in a decision that gutted the enforcement mechanisms behind the 1965 Voting Rights Act (VRA). Before Shelby County, certain districts with a history of voter discrimination had to get Congressional approval to change their election laws so Congress could prevent any district’s attempt to engage in racist voter suppression.
However, in his 2013 opinion for Shelby County, Chief Justice John Roberts decided this requirement was unconstitutional, opening the door for states to pass racist election laws consequence-free. With an even bigger majority than in 2013, conservatives now have the opportunity to overturn the rest of the VRA and further cripple what’s left of American democracy.
Unfortunately, the damage that a 6-3 conservative Supreme Court could cause to the American people is not limited to our elections. Some of our most important causes, including legal abortion, affirmative action, efforts to reform the healthcare system and the protection of LGBTQIA+ rights, could be on the docket for destruction.
So, the new Supreme Court threatens to firmly encode some of the most right-wing aspects of the modern Republican party into our nation’s laws. But what can we do about it?
The answer depends on the outcome of the upcoming general election. If Biden and the Democrats can win, then there is a possible solution: Increase the size of the Supreme Court and fill the new seats with enough left-wing judges to get a solid left-wing majority.
By packing the court with liberal justices, Biden would be able to ruin the conservative legal movement’s quest to destroy the progress that serves as the legal basis for Americans’ civil rights. It would also allow him to actually govern because any law Biden manages to pass would immediately be in jeopardy from a 6-3 conservative court.
If a future Biden administration does choose to pack the court, it would be completely legal. Article II, Section 2 of the Constitution says “[the president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court." This section is the only time that the Constitution discusses how justices are appointed, and it does not set a specific number, leaving the President free to nominate as many justices as he would like.
Some people might object to court-packing because they believe that it would further politicize and polarize the courts. This is a pointless concern because the Supreme Court is already a board of unelected judges who have almost-unilateral power to decide how laws function in this country. The idea that such an institution could possibly be apolitical is absurd — the judiciary has always been and will always be political.
If Democrats actually want to effectively exercise power, then they must recognize the political nature of the courts and adjust their political strategies accordingly. If their leaders don't pack the courts, then they are effectively handing power to the Republicans on a donkey-themed platter.