On Monday, Amy Coney Barrett was confirmed as the ninth Supreme Court Justice of the United States.
This is a travesty of democracy.
The vote on Barrett’s confirmation took place only eight days before election day. In contrast, the Senate did not even hold a hearing on Barack Obama’s candidate Merrick Garland, whom Obama had nominated almost a year before the end of his term. Majority leader Mitch McConnell argued at the time that any vote should wait “until we have a new president.
Barrett was nominated by a president who had lost the popular vote by nearly 3 million votes and who was removed from office by the House of Representatives. When Barrett joins the court, five of the nine judges will have been appointed by presidents who lost the referendum.
The Republican senators who voted for them represent 15 million fewer Americans than their Democratic colleagues.
Once Barrett sits on the Supreme Court, she will join five other reactionaries who together will be able to declare laws unconstitutional, perhaps for a generation.
Barrett’s confirmation is the culmination of years in which a shrinking and increasingly conservative, rural and white section of the U.S. population has imposed its will on the rest of America. Financed by big business, they are striving for lower taxes and less regulation.
In the event that Joe Biden becomes president on January 20, and both houses of Congress come under Democratic control, they can reverse this takeover. It could be the last chance – both for the Democrats and, more importantly, for American democracy.
First, you should increase the size of the Supreme Court. The Constitution says nothing about the number of judges. In the first 80 years of its existence, the Court changed its size seven times, from just five judges under John Adams to ten under Abraham Lincoln.
Biden says that if elected, he will set up a non-partisan commission to investigate a possible revision of the court “because it is out of balance”. That is fine, but he must act quickly. The window of opportunity could close until the 2022 midterm elections.
Second, abolish the Senate’s filibustering tactics. Under the current rules, 60 votes are required to pass laws in this chamber. This means that if the Democrats win a slim majority there, the Republicans could block any new law Biden hopes to pass.
The filibuster could be ended with a rule change that requires only 51 votes. There is growing support among the Democrats for doing this if they win so many seats. During the campaign, Biden admitted that the stalling tactic has become a negative force in the government.
The stalling tactic is also not anchored in the constitution.
The most ambitious structural reform would be to bring the Senate itself back into balance. For decades, rural states have been empty because the U.S. population has shifted to huge megalopolises. The result is growing inequality in representation, especially among non-white voters.
For example, both California, with 40 million inhabitants, and Wyoming, with 579,000 inhabitants, get two senators. If the population trend continues, by 2040 about 40 percent of Americans will live in only five states, and half of America will be represented by 18 senators, the other half by 82.
This distortion also distorts the electoral college, because the number of voters in each state is equal to the total number of its senators and deputies. Hence the recent presidents who lost the referendum.
This growing imbalance can be offset by creating more states representing a larger majority of Americans. At the very least, Washington, D.C. should be granted statehood. And considering that one in eight Americans now live in California – whose economy, if it were a separate country, would be the ninth largest in the world – why not split it into Northern and Southern California?
The Constitution is also silent about the number of states.
Those who shy away from structural reforms like the three I have outlined warn that Republicans will retaliate when they return to power.
This is nonsense. The Republicans have already changed the ground rules. In 2016 they failed to win a majority of the votes cast for the House of Representatives, the Senate or the Presidency, but they have secured control of all three states.
Barrett’s rise is the latest example of how grotesque the Republican seizure of power has become and how it is becoming more and more entrenched. If this is not reversed soon, it will be impossible to remedy it.
What is at stake is not partisan politics. What is at stake is a representative government. If the democrats are given the opportunity, they must redress this growing imbalance – for the sake of democracy.
Robert B. Reich is an American political commentator, professor and author. He served in the governments of Presidents Gerald Ford, Jimmy Carter and Bill Clinton. Reich’s latest book, The System: Who Rigged It, How We Fix It, has now been published.
The views expressed in this article are those of the author….