Clyburn is not the only prominent Democrat to endorse Supreme Court expansion in recent years. Former Vice President Kamala Harris, the party’s 2024 standard-bearer, also agreed that Congress should add four more seats to match the thirteen federal circuit courts of appeal. (The First through Eleventh Circuits hear cases from the fifty states, while the D.C. Circuit hears cases from the nation’s capital and the confusingly named Federal Circuit hears specialized appeals on patents and whatnot.)
I do not know whether the justices particularly care about Clyburn’s position on anything. But they should take stock of what it reflects: a deep and implacable desire among Democrats to break the conservatives’ grip on the Supreme Court through extraordinary means. I cannot stress enough how much the Supreme Court’s conservative majority has brought this on themselves.
In that role, Kennedy maintained an ideological balance of power of sorts on the high court. It was still undoubtedly a conservative Supreme Court. He wrote or joined some of the most consequential decisions of the era, from 2010’s Citizens United v. FEC to 2013’s Shelby County v. FEC. In less high-profile cases involving federalism and regulatory power, he was more likely to join his fellow conservatives than not.
The Kennedy Court, as one might call it, was a conservative court where many liberals could still expect that they would get a fair shake. Kennedy’s moderating presence also ensured that the court did not drift too far to the right. Conservative litigants and interest groups presented narrower arguments and positions to advance their causes ten years ago, fearing overreach and adverse rulings. Everybody who brought their case before the high court had reason to believe they might win.
Gallup’s survey is instructive in other ways, particularly about trends on the right. The modern-day nadir for conservative support came in July 2015, when a mere 18 percent of Republicans told Gallup that they approved of the court’s work. One can hardly blame them. The 2014-2015 term was the apex of the Kennedy Court’s liberalism, with banner victories on gay rights, climate change, gerrymandering reform, and the like. But their outrage didn’t last. Two years later it had rebounded to 67 percent and three years later it cracked 72 percent, even as the court remained temporarily deadlocked by Antonin Scalia’s death in 2016.
Then Ruth Bader Ginsburg died in September 2020 and Republicans rushed to install Justice Amy Coney Barrett the following month on the eve of the presidential election. Now the conservatives were fully and completely in control of the court, and everything began to change as soon as right-wing litigants could get the right cases to the nine justices. This happened to coincide with the collapse of Democratic control of Congress and the Biden administration’s practical ability to pressure the court through expansion proposals, which were buried with a presidential commission shortly after he took office.
Roberts, who once vowed in 2005 to only call “balls and strikes,” ruled that the president could climb into the stands and bludgeon people to death with a baseball bat. Sean Wilentz, a prominent historian of the early republic, compared Trump v. United States to Dred Scott v. Sandford. That infamous 1857 decision that struck down the Missouri Compromise, ruled that free and enslaved Black people could never be citizens, and precipitated the Civil War. In a similar way, Wilentz wrote, the court’s immunity ruling “has radically changed the very structure of American government, paving the way for MAGA authoritarianism just as the Taney Court tried to pave the way for enshrining the Slave Power.”
In a 6-3 ruling along the usual lines, the court’s conservative majority completed its demolition of the Voting Rights Act of 1965 by making it virtually impossible to challenge racial gerrymandering under Section 2 of the historic law. Southern state legislatures practically sprinted over the summer to gleefully wipe out as many majority-Black congressional districts as they could. Clyburn’s own district, the only one of its kind in his state, was spared only because South Carolina Republicans feared dissolving it would make it easier for Democrats to win the surrounding districts.
The amusing part, were it not so serious, is that the Roberts Court has also botched its relationships on the right. By securing a six-justice conservative majority, legal conservatives and rank-and-file Republicans alike believed that they had essentially secured a win button for American politics. In theory, they can do whatever they want while liberals will have to climb uphill both ways in the snow while carrying 50-pound sandbags on each shoulder just to pry away a single conservative vote, let alone two of them.
Indeed, looking at the court’s most recent rulings from the latest term—the first full term of the second Trump administration—as a fervent MAGA acolyte must be infuriating. Roberts voted fourteen years ago to save Barack Obama’s signature domestic policy achievement (the Affordable Care Act) while writing the majority opinion that struck down Trump’s “Liberation Day” tariffs, neutering a core pillar of his economic and foreign policy agenda. Trump himself is largely volcanic towards the court these days, occasionally accusing some of the justices of insufficient personal loyalty for appointing them.
Nor do these bit-by-bit rejections of Trumpism spur any goodwill or reassessment on the left. If anything, they only underscore how far to the right the court has moved. Yes, it’s true that Roberts’ sterling opinion in Trump v. Barbara upheld birthright citizenship. But it also exposed that only two conservative justices (Roberts and Barrett) would endorse the Citizenship Clause’s plain meaning without reservation. The high court’s ruling in Learning Resources v. Trump kneecapped Trump’s plans to levy tariffs without Congress’s assent. It also reaffirmed the long-standing suspicion that the major-questions doctrine exists only to sabotage Democratic presidents when only half of the conservatives would vote to use it against Trump. The president can fire any Senate-confirmed official in the executive branch, frustrating liberals who favor independent regulatory agencies, but can’t seize control of the Fed, enraging a president who probably wishes that he could install a big dial that says INTEREST RATES on the Resolute desk.
Now, in their ideological zeal, they have sailed into the abyss. -Barrett flood of right-wing rulings has completely drained the reservoir of liberal reverence that was filled by the Warren Court in the 1960s, with the Callais ruling squeezing out the last few drops. Trump’s personal vehemence towards a court that won’t give him everything he wants, even when it gives him far more than it should, is also decaying its support on the right.
The result is a Supreme Court that nobody trusts and where everybody loses. Thanks to Trump’s cascading second-term failures, Democrats may get a second chance to expand the court in 2029. If Clyburn’s own changing stance is any indication, the push towards court reform may be irresistible for the party this time. And if it happens, the conservative justices will have no one to blame but themselves.
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