At the time, few realized that such a Court expansion could be done statutorily without a constitutional amendment, and instead required only a majority vote of both houses. Of course, then-Senate Majority Leader Mitch McConnell abolished the filibuster rule as it applied to Supreme Court confirmations, so that confirmation of justices now only require a simple majority of the Senate. With both houses of Congress now being in Democratic hands, expanding the Supreme Court by one or two justices is theoretically possible. While possible, President Biden has not committed himself on the issue, thus the appointment of a study commission.
This issue is, of course, one that is an enormous political lightning rod, as not only have the Republicans secured a deeply conservative 6-3 majority on the Court for what could be a generation, but the Supreme Court has become the arbiter of the core social issues over which the nation’s culture war issues are fought. From gun control to abortion regulation to LGBTQ+ rights, the Supreme Court balance is fundamental to how those issues are resolved as Congress seems unable to meaningfully address them.
These culture war issues, however, on key social flash point policy questions actually have far more political consensus underlying them than the political stalemates on these issues would suggest. There is overwhelming popular support for many forms of gun control, most elements of a woman’s right to choose and for safeguarding the rights of gay and transgender citizens. The Republican Party, as many observers noted, now devoid of any true policy goals and objectives, devolved into a personality cult of former President Donald Trump, rallying its core base around culture war positions despite those positions being held only by a minority of increasingly white, and to a large extent, rural Americans. Protecting their majority on the Supreme Court is, as a result, as core a political issue for the Trumpian, white, minority base as there is.
Right now, the biggest social justice issue getting attention in the political arena is voting rights and the efforts to protect another minority—minority voters, particularly in Black urban areas—from being subject to voter suppression efforts led by Republican legislatures in a number of states. While this should be a bipartisan issue, and a wide-ranging number of America’s CEOs have come out in an effort to keep it a bipartisan issue, there is no doubt Republican Party officials at the state and federal level looking to put laws in place to limit minority group voter participation in the crucial 2022 and 2024 elections. It appears at this point that the only way the Democrats are going to secure federal legislation that addresses key voting rights protection, along with preventing state legislature interference amounting to overturning a state’s popular vote, is likely an exception to the Senate filibuster rule, another tool being used to protect the white Trumpian minority view.
The interests of the core constituency of the Republican Party—a white, Trump-supporting, culturally conservative minority—and the Democratic core constituency—Black and other minority voters seeking full voter participation access—are both minority constituencies. The Supreme Court is in its current form the ultimate backstop of the Republican Party protection of culture war issues the Trump minority is most invested in, and the Democratic Party effort is aimed at protecting the voting rights of key racial minority constituencies.
However, the Democratic efforts focused on protecting their minority constituency is a very different kind of minority protection than protecting the interests of the Trump culture warrior minority. In protecting minority voting rights, the goal is assuring that the will of the majority can be heard despite the various institutions that are in place that overcorrect in protecting the white, culture conservatives—the Electoral College, the United States Senate, the filibuster rule and currently the Supreme Court. Full access to voter participation advances the core democratic principle that the popular will of the people has a true ability to be expressed.
The Biden appointed Supreme Court commission will certainly put forward a number of reasons both for and against the expansion of the Court—and I, like many progressives, are for that expansion. This will become a major policy debate six months from now when the panel issues its study. Already a bill was introduced backed by several senators and congress members that would expand the Court by four justices.
Speaker Nancy Pelosi quickly poured cold water on it. As the observer who first put this idea forward, I too have to caution progressives. There will be a time for pushing this initiative, but this is not it. Voting rights must be prioritized near-term over any attempt to try to push through an expansion of the Supreme Court, and Democrats should not get caught up in diverting their energies toward the Court issue. In fact, rather than Speaker Pelosi trying to kill the idea now, the tradeoff should be this—after the commission assessment in six months, Democrats should offer to suspend any effort to expand the Court during the current congressional term, in return for Republican support of federal legislation to codify minimum standards for no-excuse absentee voting, friction free ID requirements, early and weekend voting and removing a state legislature’s ability to overturn the popular vote in order to subvert Electoral College results.
The fight to expand the Supreme Court can wait. It can wait to see if the Supreme Court actually rules on any of the major culture war issues in a way that is totally at odds with the stand of the majority of Americans. It can wait to see whether Democratic control of the Senate in 2022 can be expanded beyond the 51 votes that are there today, when garnering greater support for expanding the Court might be possible. It can wait for some true coalition building on the issue, as I am extremely dubious CEO support for the expansion of the Court will be there as it is today for securing voting rights. It may also have to await a Supreme Court justice currently sitting on the Court standing up for the expansion proposition, given that Justice Stephen Breyer, a Democratically appointed liberal Justice, came out against doing so.
Voting rights must be the near-term priority. It is the right thing to do. It is not only the civil rights issue of our time, but it also gives Democrats a real shot at building more significant congressional majorities a year and a half from now so that it is far less of a reach to push forward changes that dilute some key institutional protections for the white rural Trump minority that are currently in place. These include admitting Washington, D.C., and Puerto Rico as states—a true voting rights issue—given the fact that close to 4 million U.S. citizens in those two jurisdictions have their votes fully suppressed at the federal level. Progressives, let’s keep our eye on the prize—and for the time being, voting rights is it.
Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chair of Engine Media and is former senior counsel to a congressional committee.
The views expressed in this article are the writer’s own.
