August 2, 2021 at 5:00 am ET
President Joe Biden’s Supreme Court Commission comes during a time of profound national importance, when the bonds holding our nation together are being tested in ways unseen since before the Civil War. In the time since Biden’s victory last November, we have witnessed one of our two major parties unite to reject the legitimacy of that election, a violent insurrection in our nation’s capital and a systematic assault on the voting rights of people of color across the country.
Instead of serving as a check against this form of dangerous authoritarianism as the framers intended, the Supreme Court’s conservative majority exacerbated our current crisis by gutting what little remained of the Voting Rights Act. By hollowing out what has been called the single most effective piece of civil rights legislation in American history, the court’s conservative justices have all but ensured Republican-led states will pass even more aggressive voting restrictions targeting Democrats and people of color.
Unfortunately, this is not an isolated incident.
Over the past two decades, the Supreme Court’s conservative bloc has aggressively skewed the law in partisan decisions cementing Republican electoral power at the federal and state levels. Starting with Bush v. Gore when the court’s unelected judges selected George W. Bush as president in a decision they declared had no precedential value and thus no bearing on future elections, the court’s conservatives have used their power to limit ballot access for Democratic voters, cement Republican minoritarian rule in Congress and state legislatures and weaken the political power of core Democratic constituencies.
The court’s conservatives have done this through eroding critical voting rights protections with their Brnovich and Shelby County decisions, upholding voter purges in Husted v. A. Philip Randolph Institute and enabling highly targeted, partisan gerrymandering efforts to stand in Rucho v. Common Cause. The net effect is that, in much of the United States, Republican lawmakers limit the number of Democratic voters able to participate in federal and state elections while mathematically reducing the impact of the Democratic votes they cannot prevent.
The anti-democratic nature of these rulings is made worse by the fact that five of the Court’s six conservatives were appointed by presidents that lost the popular vote.
As president and founder of Alliance for Justice, I have spent the past 42 years fighting for a fair judiciary that protects the constitutional rights of every American. Throughout my career, conservatives have always commanded a majority on the Supreme Court, and I have never previously supported court expansion. Nevertheless, as I noted during my testimony before Biden’s commission, I have come to the conclusion that serious reform, including expanding the Supreme Court, is the only possible solution to our current crisis.
Conservative opponents of court reform — such as the Heritage Foundation’s John Malcom — likened reform advocates such as myself to white Southerners leading the “Impeach Earl Warren” campaign in testimony provided to the commission. Malcom went on to accuse progressives pushing for court expansion of fomenting an untenable arms race, and misleading the public into thinking that Supreme Court justices are just “partisans in robes.”
There is simply no moral equivalency between today’s progressives seeking to expand the court to preserve our democracy and ‘60s-era white supremacists angered by the court’s decision to recognize the civil rights of Black Americans. One cannot equate progressives’ quest to expand the court after it effectively overturned the Voting Rights Act to the reactions of segregationists angered by the Warren Court’s principle of “one person, one vote.” There is no comparison between today’s democracy advocates pushing for the preservation of our constitutional rights and future Republican administrations that would expand the court for mere partisan advantage.
Furthermore, a conservative majority that relies on justices like Brett Kavanaugh, who famously used his confirmation hearing to condemn progressive groups opposing his nomination while threatening revenge against Democrats, already has deep legitimacy issues. A conservative majority that subsequently uses the court’s power to act on those threats by rendering decisions entrenching the Republican Party’s control over large swaths of the country is clearly already made up of “partisans in robes.”
Biden’s commission is not authorized to make specific recommendations, but it can set the tone of the conversation surrounding the court’s future direction. Meeting the moment and living up to the commission’s moral obligation to the country and the Constitution means honestly acknowledging these difficult truths to the country. The fate of our democracy may be at stake.
Nan Aron is the president of Alliance for Justice.
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