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Unless a miracle occurs, Amy Coney Barrett will be confirmed Monday as the ninth justice of the United States Supreme Court.
This is a parody of democracy.
The vote on Barrett’s confirmation will take place just eight days before Election Day. By contrast, the Senate did not even hold a hearing on Merrick Garland, whom Barack Obama nominated nearly 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 lost the popular vote by nearly 3 million ballots and was indicted by the House of Representatives. When Barrett joins the court, five of the nine justices will have been appointed by presidents who lost the popular vote.
The Republican senators who will vote for her represent 15 million fewer Americans than their Democratic colleagues.
Once in the high court, Barrett will join five other reactionaries who together can declare the laws unconstitutional, perhaps for a generation.
Barrett’s confirmation is the culmination of years in which an increasingly narrow and conservative rural and white segment of the American population has been imposing its will on the rest of the United States. They have been funded by big companies looking for lower taxes and fewer regulations.
In the event that Joe Biden becomes president on January 20 and both houses of Congress are under the control of Democrats, they can reverse this trend. It may be the last chance, both for Democrats and, more importantly, for American democracy.
How?
To begin with, increase the size of the supreme court. The constitution says nothing about the number of judges. The court changed in size seven times in its first 80 years, from just five judges under John Adams to ten under Abraham Lincoln.
Biden says that if elected, he will create a bipartisan commission to study possible court reform “because it is getting out of control.” Okay, but you will have to move fast. The window of opportunity could close for the 2022 midterm elections.
Second, abolish Senate obstructionism. Under current rules, 60 votes are needed to enact legislation. This means that if Democrats get a minimal majority there, Republicans could block any new legislation that Biden hopes to pass.
The filibuster could end with a rule change requiring 51 votes. There is growing support among Democrats for doing this if they win that many seats. During the campaign, Biden acknowledged that filibuster has become a negative force in government.
Obstructionism is not in the constitution either.
The most ambitious structural reform would be to rebalance the Senate itself. For decades, rural states have been emptying out as the American population has moved into vast megacities. The result is a growing disparity in representation, especially of non-white voters.
For example, both California, with a population of 40 million, and Wyoming, with a population of 579,000, have two senators. If demographic trends continue, by 2040 about 40% of Americans will live in just five states, and half of the United States will be represented by 18 senators and the other half by 82.
This distortion also skews the electoral college, because the number of voters in each state is equal to the total number of senators and representatives. Hence the recent presidents who have lost the popular vote.
This growing imbalance can be remedied by creating more states that represent a larger majority of Americans. At the very least, statehood should be granted to Washington DC. And given that one in eight Americans now lives in California, whose economy, if it were a separate country, would be the ninth largest in the world, why not divide it into Northern and Southern California?
The constitution is also silent on the number of states.
Those who back down from structural reforms like the three I have outlined warn that Republicans will retaliate when they return to power. That is rubbish. Republicans have already changed the ground rules. In 2016, they failed to get a majority of the votes cast for the House, Senate or the presidency, but they secured control of all three.
Barrett’s rise is the latest illustration of how grotesque the power imbalance has become and how it continues to take hold ever deeper. If it is not reversed soon, it will be impossible to remedy it.
What is at stake is not partisan politics. It is representative government. If Democrats have the chance, they must correct this growing imbalance, for the sake of democracy.
