In the days leading up to the November election, President Donald Trump admitted he hoped U.S. courts—recently remade in his image after “packing” them with right-wing judges—would halt states from counting legally submitted mail-in ballots after November 3.
“Hopefully the few states remaining that want to take a lot of time after November 3rd to count ballots, that won’t be allowed by the various courts because as you know we’re in courts on that,” Trump told reporters.
Perhaps not surprisingly, Brett Kavanaugh, a judge whom Trump himself nominated to the court, soon declared his disdain for absentee and mail-in voting. Kavanaugh also admitted he is prepared to rule all votes not counted on or before Election Day are illegitimate, if it will help get Trump’s re-elected.
“To state the obvious, a State cannot conduct an election without deadlines,” said Kavanaugh, who was barely approved for his position on the Supreme Court in a lopsided vote with little Democratic support in 2018. The judge then offered a ridiculous illustration that was not even the issue of the case: “Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the State nonetheless count their votes. Voters who submit their absentee ballots after the State’s deadline similarly do not have a right to demand that the State count their votes.”
Additionally, Kavanaugh cited Vermont as an example of a state that “decided not to make changes to their ordinary election rules,” but he fouled his information so badly the Vermont Secretary of State Jim Condos demanded Kavanaugh get his facts straight. Vermont actually did change their election rules specifically so voters could vote without catching a deadly disease.
The fact of the matter is even after the Nov. 3 election, Trump and his pet judges will continue to put countless impediments between voters and polls because when large numbers of people vote, people like Trump tend to lose. He admitted as much on an episode of “Fox & Friends” while arguing against voter-friendly reforms such as vote-by-mail, same-day registration, and early voting initiatives meant to keep people from catching COVID-19.
“The things they had in there were crazy,” Trump told “Fox & Friends.” “They had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again.”
Trump’s argument against voting is nothing new. Conservative activist Paul Weyrich famously admitted as far back as 1980 that “I don’t want everybody to vote. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.”
The drive within one party to discourage voting is apparently an old play, but that party’s new ability to actually get it done with the help of the courts is becoming a real problem. Republican presidents made 15 of the last 19 U.S. Supreme Court appointments, and this had nothing to do with chance. The GOP slanted the system by refusing to fill more than 100 judicial seats under Democrat presidents, but then rammed every seat through in a flurry of nominations when the most recent Republican took the White House. It did not matter if the judges were even qualified for their jobs, but because of this tactic, Trump has appointed 30 percent of all sitting federal circuit judges.
And now that hard work of denying judges is paying off. The Lighthouse reported recently how new courts populated with Trump judges allowed anti-democratic efforts to whittle away at voter protections. In fact, Trump judges were recorded issuing 62 anti-democracy rulings versus 13 pro-democracy rulings.
Changing a court that’s been so thoroughly gamed against democracy will be no easy feat, but there are some possibilities if a majority of Senate Democrats can come together with the reigning Democrat majority in the House and Democratic President Joe Biden to tweak some things.
Shrink the Courts
Reducing the Supreme Court by hacking the number of sitting judges down from nine justices to six is a popular idea, for obvious reasons. If the Senate could work under the presumption of “last ones hired, first ones fired,” a new Senate could dump the last three judges. This would toss an anti-abortion idealogue, a judge who’s ready to fully gut the Voting Rights Act, and a confirmed sex pest all in one go. The problem with this, however, is whenever Congress moved to reduce judicial seats in the past it was always by attrition.
Justices on the Supreme Court have lifetime federal appointments, so instead of dumping judges outright, Congress simply eliminated an empty seat or refused to fill a seat after it became vacant. The only constitutional way to thoroughly dump a SCOTUS judge is by impeaching them, but impeaching a judge is a complicated process that will inevitably require a very high number of senators to agree to the impeachment, including at least 30 Republicans.
Expand the Courts
Ah, now we’re cooking with gas. While reducing the number of seats means waiting for a bunch of people with excellent healthcare to die of indigestion, increasing the number of seats requires no extra work than what’s required to pass “a farm bill,” according to one report. In fact, president Franklin Delano Roosevelt made the attempt in the 1930s, but the only thing that stopped him was public opposition because the public feared the politicization of the court.
Today, however, the court is already heavily politicized, thanks to one party’s gimmicky cheating, and now the court majority appears to disagree with the mainstream of U.S. voters on things like Obamacare and Roe v. Wade. Judging by past opinions of new incoming court judges, SCOTUS is likely to end legal abortion in the U.S., as well as Obamacare and the Voting Rights Act of 1965, despite all of these things being very popular with U.S. voters.
Of course, the only opposition to increasing the court in the Senate would probably come from Republicans, but if Democrats do indeed take the Senate after all the votes are counted in November, the opposing party will have little power to stop it.
The issue now, however, is how to battle the very wording of the phrase “packing” the court. “Packing” is an ugly word that implies taking something and arbitrarily remaking it into something else. That’s not the case here. The truth of the matter is that one political party has been busily “packing” the court for almost a generation now, and what incoming senators are threatening to do is actually more of a “correction.” And it is long overdue.